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Steven Wayne Bender v. James Wynder

December 28, 2012

STEVEN WAYNE BENDER,
PETITIONER,
v.
JAMES WYNDER, ET AL., RESPONDENTS.



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

ECF Nos. 75, 77

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)(5) and/or (6) (ECF No. 77) and Application for Leave to Proceed in forma pauperis (ECF No. 75). 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 "[w]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective." Id. at 1320. Petitioner argues that he is entitled to Rule 60(b) relief pursuant to Martinez. However, for the reasons explained herein, Petitioner's motion will be denied.

I.BACKGROUND*fn1

On July 13, 2001, Petitioner was convicted of second-degree murder in the death of his estranged wife's boyfriend, Marvin Knieriem. He was also convicted of one count each of burglary, terroristic threats, and aggravated assault, and three counts of recklessly endangering another person. After the jury convicted Petitioner, Petitioner's attorney filed a direct appeal on his behalf to the Superior Court of Pennsylvania. On December 31, 2002, the Superior Court affirmed Petitioner's judgment of sentence.

Petitioner then filed a petition for relief pursuant to the Pennsylvania Post Conviction Relief Act ("PCRA"), in which he raised approximately 10 issues of ineffective assistance of counsel. The PCRA trial court appointed counsel to represent Petitioner, but Petitioner informed the court that he wanted to represent himself. A PCRA hearing was conducted on October 28, 2003 and March 12, 2004, and the PCRA trial court denied relief on June 16, 2004. Petitioner appealed to the Superior Court of Pennsylvania, but the appellate court issued a decision in which it affirmed denial of PCRA relief.

On September 15, 2005, Petitioner filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The undersigned issued a Report and Recommendation dated June 5, 2006, recommending that the habeas petition be denied. Following the filing of objections, District Judge Donetta W. Ambrose adopted the Report and Recommendation, denying Petitioner's habeas petition and a certificate of appealability. Petitioner appealed and the Third Circuit Court of Appeals denied his request for a certificate of appealability on April 11, 2007.

Now pending before the Court is a Rule 60(b) motion whereby Petitioner asserts that he is entitled to relief pursuant to 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" to justify the reopening of a final judgment. Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). The Supreme Court has recognized that "[s]uch circumstances will rarely occur in the habeas context." Gonzalez, 545 U.S. at 535.

To the extent Petitioner argues that the newly issued Martinez decision constitutes extraordinary circumstances sufficient to reopen a final judgment under Rule 60(b), the Court finds that it does not. Although the Third Circuit has yet to address this question, the Fifth Circuit has held in Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012) that "the Martinez decision is simply a change in decisional law and is not the kind of extraordinary circumstance that warrants relief under Rule 60(b)(6)." Id. at 320 (internal quotations omitted). In that case, Beunka Adams, facing imminent execution, sought to have his execution stayed while he prosecuted a Rule 60(b)(6) motion based on Martinez, asserting his intention to "vindicate his constitutional right to effective counsel." The court explained that:

In his Rule 60(b)(6) motion, Adams stated that the district court relied on Coleman to conclude that Adams's ineffective assistance of trial and appellate counsel claims were procedurally defaulted and that ineffective assistance of state post-conviction counsel could not constitute cause to excuse the default. Adams asserted that, since the district court's judgment, the Supreme Court had decided Martinez, which created an exception to Coleman's holding that ineffective assistance of state habeas counsel cannot constitute cause to excuse procedural default. Adams argues that Martinez constitutes "extraordinary circumstances" entitling him to Rule 60(b)(6) relief. 679 F.3d at 316. The Fifth Circuit then went on to conclude:

[I]n denying Adams's initial federal habeas petition, the district court correctly determined that Adams's claims were procedurally defaulted pursuant to the then-prevailing Supreme Court precedent of Coleman. The Supreme Court's later decision in Martinez, which creates a narrow exception to Coleman's holding regarding cause to excuse procedural default, does not constitute an "extraordinary circumstance" under Supreme Court and our precedent to warrant Rule 60(b)(6) relief. See Gonzalez, 545 U.S. at 536, 125 S. Ct. 2641; Bailey, 894 F.2d at 160. The Martinez Court's crafting of a narrow, equitable exception to Coleman's holding is "hardly extraordinary." Gonzalez, 545 U.S. at 536, 125 S. Ct. 2641; see also Martinez, 132 S. Ct. at 1320 ("The rule of Coleman governs in all but the limited circumstances recognized here.").

Because the Martinez decision is simply a change in decisional law and is "not the kind of extraordinary circumstance that warrants relief under Rule 60(b)(6)," Adams's 60(b)(6) motion is without merit. 679 F.3d at 320. Thus, the Fifth Circuit vacated the district court's stay of execution. The Supreme Court, in ...


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