The opinion of the court was delivered by: Baylson, J.
MEMORANDUM AND ORDER RE: PETITIONER'S MOTION FOR VACATUR UNDER RULE 60(b)
On January 23, 2012, Petitioner, proceeding pro se, filed a Motion under Fed. R. Civ. P. 60(b) requesting vacatur of the December 15, 2011 judgment denying his Petition for Writ of Habeas Corpus (ECF No. 15). Most of the relevant facts and procedural background of the matter were described in detail in the Court's Order of February 28, 2012 (ECF No. 18) and need not be repeated again here. Accordingly, the Court will summarize only the events that have taken place since the entry of the February 28, 2012 Order.
I. Recent Background and Procedural History
On March 7, 2012, Petitioner submitted a response reiterating and elaborating upon his assertions that (1) his attorney did not send him any information regarding his habeas case (including a copy of the Report and Recommendation or information about how to object), (2) because his relationship with counsel had broken down, he was not aware of the Court's December 15, 2011 denial of his Petition until his family provided him with a docket sheet in January 2012, (3) he did, in fact, attempt to file a request to amend his Petition in August 2011, with copies to the District Attorney's Office, which copy the District Attorney may have retained, and (4) he still wishes to have his original Petition withdrawn so that he can file an amended petition, even if the amended petition will also be time-barred. (ECF No. 20)
On March 12, 2012, pursuant to the Court's Order of February 28, 2012, Simpson's counsel submitted a Petition for Leave to Withdraw as counsel. (ECF No. 22) As the Court noted in its February 28, 2012 Order, Simpson's counsel had failed to comply with Local Rule 5.1(c) before ceasing his representation of the Petitioner; accordingly, the Court ordered him to follow proper procedures to move to withdraw.
Finally, on March 13, 2012, the District Attorney's Office submitted a letter responding to Petitioner's claims, also as directed by the Order of February 28, 2012. (ECF No. 23) Notably, the letter stated that the District Attorney's Office had communicated with Simpson's counsel in April 2011 regarding a request for an extension of time, to inquire whether the motion would be opposed; Simpson's counsel responded that it would not be opposed and the District Attorney's Office "therefore had no reason whatsoever to doubt that Mr. Abdul-Rahman was properly acting as Mr. Simpson's counsel in this case" (at least as of April 2011). The letter further represented that, until Simpson's pro se filing of December 21, 2011, the District Attorney's Office had no knowledge or records of any written or other communications from Simpson or anyone else on his behalf-not in August 2011 or at any other time-suggesting that Simpson's counsel had been acting without authorization.
On March 23, 2012, Petitioner submitted a Response to the District Attorney's Office Letter dated March 13, 2012 (ECF No. 24). In this document, Petitioner attaches receipts showing that he mailed several documents to the Philadelphia District Attorney's Office and asserts that they have been lost within that office and urges that office to gather them together. However, the Court does not find that any significance to this submission.
Rule 60(b) sets forth enumerated circumstances in which, "[o]n motion and upon such terms as are just," a court may relieve a party from a final judgment. The first five provisions of the Rule are inapplicable to this case, but the sixth provision constitutes a "catch all" that authorizes that relief may be granted for "any other reason justifying relief from the operation of the judgment." The Third Circuit "has consistently held that the Rule 60(b)(6) ground for relief from judgment provides for extraordinary relief and may only be invoked upon a showing of exceptional circumstances." Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002)
The Court is faced with a most unusual situation in this case. On the one hand, in light of the restrictions of AEDPA and in the circumstances presented here, the Court cannot ignore the fact that a Petition was, in fact, filed on Simpson's behalf on October 19, 2010.
Even assuming Simpson lacked knowledge of the existence of the Petition until August 2011, he simply has not demonstrated that he exercised due diligence in notifying the Court of his attorney's alleged lack of authorization.*fn1
Petitioner is charged with knowledge that he had one (1) year following the finality of any state court appeal and/or post-conviction petition to file a habeas petition under 28 U.S.C. § 2254. There is no reason to believe that the filing of his § 2254 Petition was unauthorized. Even if it were unauthorized, then Petitioner had the obligation to file his own petition pro se within the statutory one-year period, but did not do so.
An unsubstantiated assertion that he attempted to file a letter with the Court in August 2011 is not enough under circumstances in which (1) Simpson has offered no evidence regarding his efforts to mail or file it, (2) neither the Court nor the District Attorney's Office has any record or receipt of such an attempt, and (3) Simpson had approximately four more months before the issuance of the December 15, 2011 judgment (entered upon the approval of the Report and Recommendation) to confirm whether the alleged August filing was received by the Court, and to resubmit it if not. See, e.g., Anjulo-Lopez v. United States, 541 F.3d 814, 818-19 (8th Cir. 2008) (holding that an incarcerated petitioner had not shown the "reasonable diligence" required to equitably toll the AEDPA deadline where "[the fact] [t]hat an appeal had not been filed was a matter of public record" and the petitioner did not take action within approximately 3 months of learning of his counsel's failure to notice the appeal). Simpson bears the burden-a "heavy ...