The opinion of the court was delivered by: Yohn, J.
Jamie Kirnon moves, under Federal Rule of Civil Procedure 60(b)(3) and (6), to set aside the December 17, 2008, dismissal of his motion for habeas relief pursuant to 28 U.S.C. § 2254. Kirnon asserts that he is entitled to relief from that judgment because this court erred in concluding that his claim of prosecutorial misconduct was procedurally defaulted and in failing to grant an evidentiary hearing to give him the opportunity to develop the facts further. For the reasons set forth below, I conclude that Kirnon's motion does not allege any reason that would justify setting aside the judgment in the original § 2254 proceedings. I will therefore deny Kirnon's motion to set aside that judgment.
I. Factual and Procedural History
On November 4, 2003, a jury found Kirnon guilty of first-degree murder, aggravated assault, criminal conspiracy, carrying a firearm on a public street, and possession of an instrument of crime. The jury sentenced Kirnon to life imprisonment for the murder charge. The Honorable Gary Glazer, who presided over the trial, also imposed consecutive sentences of 72-144 months for aggravated assault and 42-64 months for criminal conspiracy. For the remaining offenses, Judge Glazer entered a judgment of guilty but imposed no further penalty.
Kirnon filed a direct appeal in the Pennsylvania Superior Court challenging the sufficiency and weight of the evidence presented at trial alleging that the testimony of key witnesses was contradictory and inconsistent. Commonwealth v. Kirnon, No. 0604 EDA 2004, slip op. at 5 (Pa. Sup. Ct. Jan. 13, 2005). The Superior Court affirmed the judgment, concluding that the evidence clearly established that Kirnon was present at the scene of the crime and actively participated in the shooting. Id. Kirnon did not seek discretionary review by the Pennsylvania Supreme Court.
Kirnon instead filed a pro se petition pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Const. Stat. Ann. §§ 9541-9546, on January 13, 2006. Commonwealth v. Kirnon, No. 0374, 2006 Phila. Ct. Com. Pl. LEXIS 529, at *1 (C.P. Phila. Oct. 5, 2006). In one of the six arguments that he raised, Kirnon argued that the prosecutor unconstitutionally injected race into the trial by referring to Kirnon as a "black drug dealer" and "murderer" in closing argument. Id. at *3.Kirnon's appointed PCRA counsel filed a no-merit letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Sup. Ct. 1988). Id. at *2. Petitioner alleges that he sent objections to the no-merit letter to the clerk of the PCRA court on October 3, 2006, pursuant to Pa. R. Crim. P. 907, but these objections were not filed on the docket. (Pet'r's Mot. 7-8.) The PCRA court concluded that trial counsel was not ineffective for failing to object and move for a mistrial based on the statements because "[t]he remarks in the context of the whole argument simply do not rise to the level that would prejudice the jury."*fn1 Kirnon, 2006 Phila. Ct. Com. Pl. LEXIS 529, at *8. After conducting its own review of the record, the PCRA court agreed with counsel's analysis in the no-merit letter and denied the petition on October 5, 2006. Id. at *2.
Kirnon appealed the denial of his PCRA petition on October 19, 2006, raising twenty-two grounds for relief. Commonwealth v. Kirnon, No. 3235 EDA 2006, slip op. at 1,4 (Pa. Super. Ct. July 24, 2007). One of the arguments asserted was that trial counsel was ineffective for failing to object and move for a mistrial when in closing argument, the Commonwealth referred to Kirnon as a "black drug dealer and murderer." Id. at 5. The Superior Court found that the majority of his claims, including the claim of ineffectiveness based on the racial comment, did not conform to the requirements set forth in Pennsylvania Rules of Appellate Procedure 2116, which requires that the petitioner's statement of questions not exceed one page, and 2119, which requires having separately demarcated sections that address each argument with discussion and appropriate citations. Id. at 6-9. The court concluded that "the defects in Appellant's brief are substantial" because rather than advance legal arguments, Kirnon made "bald assertions of error." Id. at 8. Also, "[f]or his claims of ineffective assistance of trial and appellate counsel, Appellant . . . fail[ed] to meaningfully discuss and apply the standard." Id. The court considered the majority of his claims waived. Id. at 9. Kirnon's petition for reargument was denied on September 28, 2007, and he did not seek discretionary review with the Pennsylvania Supreme Court.
Kirnon then filed a habeas motion pursuant to 28 U.S.C. § 2254 on October 25, 2007, raising nine grounds for relief. Kirnon v. Klopotoski, 620 F. Supp. 2d 674, 680-81 (E.D. Pa. 2008). In Claim V, Kirnon argued "[p]rosecutorial misconduct stemming from the prosecutor's racially-based comment made during closing argument." Id. at 681. Magistrate Judge Hey recommended that the claim be dismissed, concluding that while the remarks were a "deplorable injection of race into the trial," "the prosecutor's one-time mention of race in closing did not call the verdict into question." Id. at 700. I did not reach the merits of Claim V because I concluded that it was procedurally defaulted. Id. at 682-85. "Kirnon may have raised this claim in his original PCRA petition, but did not raise it in his direct appeal or his PCRA appeal." Id. at 682. Kirnon failed to exhaust his state remedies and because the time to do so had passed, Claim V was procedurally defaulted. Id. Moreover, Kirnon failed to establish cause and prejudice or a fundamental miscarriage of justice to overcome his procedural default. Id. at 682-85.
On December 29, 2008, Kirnon filed a timely notice of appeal. The Third Circuit denied the request on June 23, 2009, for failure to make a substantial showing of the denial of a constitutional right. Kirnon v. Wynder, No. 09-1212, slip op. at 1 (3d Cir. June 23, 2009). The Third Circuit concluded that "the habeas corpus petition does not provide a basis for the writ to issue for the reasons given by the District Court," and that even if Claim V could be considered on the merits, "the Magistrate Judge correctly concluded that the prosecutor's comments, when considered in context and not in isolation, did not infect the trial with unfairness as to make the resulting conviction a denial of due process." Id. On May 7, 2010, Kirnon filed this Rule 60(b) motion, arguing that denial of Claim V was a result of several mistakes and oversights that reflect a defect in this court's integrity.
Rule 60(b) permits a party to move for relief from a judgment on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Fed. R. Civ. P. 60(b). The remedy provided by Rule 60(b)is extraordinary and only special circumstances may justify reopening a final judgment. See Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005); Moolenaar v. Gov't of Virgin Islands, 822 F.2d 1342, 1346 (3d Cir. 1987). The Third Circuit has held that "a Rule 60(b) motion may not be used as a substitute for appeal, and that legal error, without more, cannot justify granting a Rule 60(b) motion." Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988) (citing Martinez-McBean v. Gov't of the Virgin Islands, 562 F.2d 908, 912 (3d Cir. 1977)). Rule 60(b) also may not be used to circumvent the restrictions that Congress has placed on second or successive habeas petitions. Gonzalez, 545 U.S. at 531-32. Thus, a Rule 60(b) motion to set aside a federal habeas court's decision may not raise grounds for habeas relief or attack "the federal court's previous resolution of a claim on the merits." Id. at 532. A petitioner may seek relief under Rule 60(b), however, when there has been "some defect in the integrity of the federal habeas proceedings," Id. at 532, and the motion "confines itself not only to the first federal habeas ...