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Ziomek v. Wynder

United States District Court, Third Circuit

December 5, 2013

JAMES T. WYNDER, et al. Respondents


WILLIAM W. CALDWELL, District Judge.

I. Introduction

On September 20, 2007, the petitioner, Raymond Ziomek, filed a counseled petition under 28 U.S.C. § 2254 challenging his conviction and sentence in the Court of Common Pleas of Luzerne County, Pennsylvania. In those state proceedings, Petitioner pled guilty in February 1981 to murder generally, abuse of a corpse and criminal mischief. After a degree-of-guilt hearing, the court found him guilty of first-degree murder. In May 1981, he was sentenced to an aggregate term of life plus two to four years' imprisonment.

On February 13, 2008, we dismissed the 2254 petition as time-barred. Ziomek v. Wynder , 2008 WL 416887 (M.D. Pa.). We are considering two motions challenging that ruling: (1) a counseled motion, filed on April 2, 2009, styled as a "petition for habeas corpus pursuant to 28 U.S.C. § 2254, " but which actually requests that the February 13 order be reopened and the 2254 petition be considered on the merits; and (2) a pro se motion filed pursuant to Fed.R.Civ.P. 60(b)(6) on February 19, 2013.[1]

II. Discussion

A. The Counseled Motion

As noted, the counseled motion is styled as a 2254 petition, but since substantively it requests that we reopen the judgment, we will treat it as a motion under Fed.R.Civ.P. 60(b)(6).

Rule 60(b)(1) through (5) allows relief from a judgment in five specific situations.[2] Rule 60(b)(6), the catchall provision, allows relief from a judgment for "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(6).[3] Like motions made under the other subdivisions of Rule 60(b), a motion under Rule 60(b)(6) "must be made within a reasonable time." Rule 60(c)(1). "What constitutes a reasonable time' depends on the circumstances of each case. [citation omitted]. A court considers many factors, including finality, the reason for delay, the practical ability for the litigant to learn of the grounds relied upon earlier, and potential prejudice to other parties." In re: Diet Drugs , 383 F.App'x 242, 246 (3d Cir. 2010)(nonprecedential).

Because a motion under Rule 60(b)(6) can be granted "for any other reason that justifies relief, " the party seeking such relief must show "extraordinary circumstances" as a way of respecting the separate interest in the finality of judgments. Budget Blinds, Inc. v. White , 536 F.3d 244, 255 (3d Cir. 2008). If an extreme and unexpected hardship will result if relief is not granted, then extraordinary circumstances have been shown. Id. "This hardship' requirement may sometimes be satisfied when the judgment precluded an adjudication on the merits.'" Id. (quoted case omitted). A delay in filing a Rule 60(b)(6) motion must also be justified by extraordinary circumstances. In re: Diet Drugs , 383 F.App'x at 246.

In the instant case, as noted above, on February 13, 2008, we denied the 2254 petition as barred by the statute of limitations, after performing the typical calculation involving statutory and equitable tolling. The counseled motion, filed April 2, 2009, argues we should grant relief because: (1) the memorandum and order denying the petition was never sent to Petitioner's counsel, although it was sent to Petitioner; and (2) the petition was timely, based on statutory and equitable tolling, contrary to the court's analysis.

We will deny the counseled motion. First, the motion does not establish extraordinary circumstances for the delay in filing the motion. We see no reason to disagree with counsel that he was not sent the order denying the 2254 petition at the time it was filed. A review of the docket indicates it was only sent to Petitioner. However, the motion does not inform us when counsel did obtain a copy, as it only says that he "was not given timely notice." (Doc. 9, ECF pp. 2, 3). In the absence of an allegation concerning when counsel actually received notice, we cannot conclude that the motion was filed within a reasonable time.

Second, the motion does not otherwise establish extraordinary circumstances. In seeking relief from the judgment, it only reiterates points we dealt with in deciding that the 2254 petition was time-barred. This is not enough. See Holland v. Holt , 409 F.App'x 494, 497 (3d Cir. 2010)(nonprecedential)(no extraordinary circumstances when party merely reargues the merits of his claims).

B. The Pro Se Rule 60(b)(6) Motion

The pro se motion also argues that we erred in deciding that the 2254 petition was untimely, but presents a new argument. The motion argues we made a factual error in saying that Petitioner's second state postconviction relief petition, filed January 3, 1997, was denied by the trial court on February 25, 1997. Ziomek v. Wynder , 2008 WL 416887, at *1, 3. This led us to conclude that the tolling of the limitations period by the second postconviction petition ended on March 27, 1997, the expiration of the period for appealing the trial court's order, when Petitioner did not take an appeal. Id. at *3. With the limitations period running again, we then decided that the deadline for ...

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