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Steven David Vogt v. Superintendent Coleman

July 18, 2012

STEVEN DAVID VOGT,
PETITIONER,
v.
SUPERINTENDENT COLEMAN, RESPONDENT.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

ECF No. 40

MEMORANDUM OPINION AND ORDER

This case is before the Court on Petitioner's Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) (ECF No. 40) filed on July 9, 2012. The motion is based on the United States Supreme Court's recent decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012), which held that ineffectiveness of post-conviction counsel may serve to excuse the procedural default of claims alleging trial counsel ineffectiveness. Petitioner argues that Martinez provides a proper ground for this Court to reopen his federal habeas proceeding. For the reasons explained herein, Petitioner's motion will be denied.

I.BACKGROUND

On January 31, 1991, Petitioner was found guilty by jury of Murder in the First Degree, Robbery, Theft, Kidnapping and Criminal Conspiracy. Following the denial of post-verdict motions, he was sentenced to life imprisonment on June 17, 1991. Petitioner filed a timely notice of appeal to the Superior Court of Pennsylvania, which affirmed the judgment of the lower court on October 21, 1991. Petitioner filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied by that court on June 25, 1993. He did not seek discretionary review in the United States Supreme Court.

Petitioner filed a pro se petition for relief under the Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Const. Stat. § 9542. Following appointment of counsel, an amended petition was filed asserting that Petitioner was entitled to relief due to newly discovered evidence. A PCRA hearing was scheduled for December 7, 1998; however, on that date, Petitioner voluntarily withdrew his PCRA petition. No appeal was filed.

Petitioner filed a second PCRA petition on July 2, 2004, and appointed counsel filed an amended petition on November 17, 2004. A hearing was held on Petitioner's PCRA petition on January 27, 2006, and on July 12, 2006, the trial court denied the PCRA petition as untimely. Petitioner filed a notice of appeal, and on October 24, 2007, the Superior Court of Pennsylvania affirmed the trial court's determination denying Petitioner PCRA relief. Petitioner filed a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, which was denied by that court on April 8, 2008.

Petitioner filed his Petition for Habeas Corpus in this case on April 14, 2008, and on January 8, 2010, this Court dismissed the Petition as untimely because it was not filed within the one-year limitations period provided for under 28 U.S.C. § 2244(d). Petitioner appealed and the Third Circuit Court of Appeals denied his request for a certificate of appealability on May 24, 2010. He filed a Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b) on September 24, 2010, asserting that he received new evidence of his actual innocence on August 27, 2010. This Court denied the motion because Petitioner had not first exhausted his newly discovered evidence claim in the Pennsylvania state courts. Petitioner's Motion for Reconsideration of that order was denied, and he filed an appeal to the Third Circuit, which denied a certificate of appealability on February 7, 2011. Petitioner filed yet another Rule 60(b) motion on November 17, 2011, which was again denied.

Recently, Petitioner filed an application to the Third Circuit to file a second or successive habeas corpus petition pursuant to 28 U.S.C. § 2244(b). He argued that the holding of Martinez v. Ryan, 132 S. Ct. 1309 (2012), which allowed the ineffectiveness of counsel during collateral proceedings to serve as possible "cause" for surmounting a procedural default, is a "new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2244(b)(2)(A). The Third Circuit denied his request on May 31, 2012.

Now pending before the Court is another Rule 60(b) motion whereby Petitioner requests that the Court reopen his federal habeas proceeding and consider his ineffective assistance of trial counsel claims due to the Supreme Court's recent holding in Martinez.

II.DISCUSSION

Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category "any other reason justifying relief form the operation of the judgment." Fed. R. Civ. P. 60(b)(6). A motion under subsection (b)(6) must be brought "within a reasonable time," Fed. R. Civ. P. 60(c)(1), and requires a showing of "extraordinary circumstances." Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).

A.Second or Successive Petition

For habeas petitioners, Rule 60(b) may not be used to avoid the prohibition set forth in 28 U.S.C. § 2244(b) against second or successive petitions. In Gonzalez, the Court explained that a Rule 60(b) motion constitutes a second or successive habeas petition when it advances a new ground for relief or "attacks the federal court's previous resolution of a claim on the merits." Id. at 532. "On the merits" refers "to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U.S.C. §§ 2254(a) and (d)." Id. at n.4. The Court further explained that a Rule 60(b) motion does not constitute a second or successive petition when the petitioner "merely asserts that a previous ruling which precluded a merits determination was in error -- for example, a denial for such reasons as failure to ...


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