United States District Court, M.D. Pennsylvania
JAMES W. RILEY, Petitioner,
ROBERT W. MYERS, et al., Respondents.
RICHARD P. CONABOY, District Judge.
Here we consider the Report and Recommendation of Magistrate Judge Susan E. Schwab recommending denial of Petitioner's January 16, 2014, motion (Doc. 12) in which he requests that the Court vacate judgment entered on September 22, 2000, pursuant to Federal Rules of Civil Procedure 60(b)(2) and 60 (b)(6). (Doc. 15 at 10.) Magistrate Judge Schwab also recommends a finding be made that there is no probable cause to issue a certificate of appealability. ( Id. ) On March 28, 2014, Petitioner filed objections to the Report and Recommendation. (Doc. 16.) For the reasons discussed below, we conclude Petitioner's objections are without merit. We adopt the Report and Recommendation (Doc. 15) as modified, deny Petitioner's motion (Doc. 12), and find there is no basis for the issuance of a certificate of appealability.
In February 1993, Petitioner was convicted by a jury of first degree murder in the July 1991 shooting death of his stepdaughter. (Doc. 12 at 4; Doc. 15 at 2.) On August 11, 1993, he was sentenced to life imprisonment. (Doc. 12 at 4.) At trial, Petitioner requested but was refused a jury instruction as to voluntary intoxication. (Doc. 12 at 4.) Following direct appeal to the Pennsylvania Superior Court, the conviction was vacated and the matter was remanded for a new trial. (Doc. 12 at 4; Doc. 15 at 2.) Petitioner asserts the Superior Court's decision was based on the determination that sufficient evidence was presented to merit Petitioner's requested jury instruction of voluntary intoxication. (Doc. 12 at 4.) Petitioner's new trial was held in February 1996. ( Id. ) On March 1, 1996, a jury again convicted Petitioner of first degree murder and Petitioner was sentenced to life imprisonment. ( Id. ) Petitioner filed a direct appeal with the Pennsylvania Superior Court raising the issue that the voluntary intoxication jury instruction was in error. ( Id. ) By decision dated October 21, 1996, and filed on December 1, 1996, Petitioner's conviction and sentence were affirmed by the Pennsylvania Superior Court. (Doc. 15 at 2.)
Following the affirmance, Petitioner received a letter from his attorney, Robert Trambley ("Trambley"). (Doc. 15 at 2.) Trambley had represented Petitioner at the second trial and on the direct appeal that followed. ( Id. n.2.) The letter indicated that the trial transcript, pretrial conference transcript, and the Superior Court's opinion were enclosed. ( Id. ) Trambley further advised Petitioner that he had not and did not intend to file a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania, that Riley could hire an attorney or proceed on his own, and that Riley should contact him if he needed additional documents or had any questions. ( Id. ) Petitioner did not file a direct appeal or any petition for post-conviction relief in Pennsylvania state court. (Doc. 15 at 2-3.) He states that he specifically directed Trambley to submit via his direct appeal and allowance of appeal Petitioner's claim that the trial court erred in permitting Petitioner's wife to testify against him at trial in violation of 42 Pa. C.S. § 5913(4). (Doc. 12 at 5.) Petitioner asserts that the failure to raise this claim resulted in the claim not being exhausted: "Petitioner could not have presented this specific claim via his first timely filed writ of habeas corpus petition due to the fact that this claim would not have mustered the federal exhaustion and procedural default requirements." (Doc. 12 at 6.)
On June 30, 2000, Petitioner filed a federal habeas corpus petition in this Court. (Doc. 1.) On August 1, 2000, pursuant to the Third Circuit's mandate in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), Magistrate Judge J. Andrew Smyser put Petitioner on notice of the consequences of filing a federal habeas corpus petition and the procedural requirements that he must satisfy under the relevant habeas corpus statutes. (Doc. 5; Doc. 15 at 3.) Petitioner was also given the option of either proceeding on his original petition, as filed, or withdrawing the petition and filing an all-inclusive, comprehensive one within one year of the AEDPA statutorily prescribed period, 28 U.S.C. § 2244(d). ( Id. )
On August 11, 2000, Petitioner filed a response to the Order which states in relevant part "if these Honorable Courts don't appoint counsel as set forth above, then it would be petitioner's desire to withdraw his writ of habeas corpus at this time and return to the state to seek his state records within confines of his legal options, then returning to this court at a latter date.'" (Doc. 8 at 2 (quoting Doc. 6).) Petitioner also stated that he would want his petition ruled upon if the Court did not appoint counsel. ( Id. ) By Report and Recommendation of August 28, 2000, Magistrate Judge Smyser recommended that the petition be deemed withdrawn and the case file be closed. (Doc. 7.) Petitioner did not file objections to the Report and Recommendation. Agreeing with the Magistrate Judge that there was no basis upon which to appoint counsel, the Court determined that Petitioner desired to withdraw his original § 2254 petition and, by Order of September 22, 2000, deemed the petition withdrawn. (Doc. 8 at 3.) Petitioner did not seek timely reconsideration of the closing Order or appeal the Court's decision.
On April 30, 2002, Petitioner filed another 28 U.S.C. § 2254 petition in this Court, 3:02-CV-750. Petitioner raised six substantive grounds for relief:
1) he was denied the right to appeal to the Supreme Court of Pennsylvania because his counsel abandoned him, (Doc. 1 at 1); 2) he was constructively denied the right to counsel, due process and equal protection on appeal and at trial because his counsel's performance was in effect no meaningful assistance, (Id. at 8); 3) appellate counsel was ineffective because he was burdened by a conflict of interest in that he did not raise issues related to his own ineffectiveness on appeal, nor did he advise Petitioner of the appropriateness of having other counsel file post-trial motions, (Id. at 11); 4) trial counsel was ineffective for failing to adequately investigate and prepare for trial and present a proper defense, (Id. at 13); 5) trial counsel was inadequate for failing to preserve and raise the issue of legal, factual or actual innocence of the crime charged in that Petitioner asserts he did not have the requisite specific intent required for first degree murder, (Id. at 18); and 6) Petitioner was denied due process and a fundamentally fair trial because the trial judge made an improper comment on Petitioner's guilt or innocence during jury instruction, (Id. at 22).
(M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 31 at 5-6.)
By Memorandum and Order of November 1, 2002, the Court concluded the habeas action was barred by the statute of limitations provisions of 28 U.S.C. § 2244(d) and Petitioner could not satisfy the requirements necessary for the Court to apply equitable tolling principles. (M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 31 at 7-20.) Petitioner appealed the Court's decision to the Third Circuit Court of Appeals. (M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 34.) It appears Petitioner filed a petition for a writ of certiorari in the United States Supreme Court before the Third Circuit decided his appeal. (M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 40.) On October 23, 2003, the Third Circuit Court of Appeals received notification that the Supreme Court denied the petition for writ of certiorari-that correspondence was docketed in this Court on November 3, 2003. (M.D. Pa. Civ. A. No. 3:02-CV-750, Doc. 41.) Petitioner's appeal in the Third Circuit was noted to be terminated as per a docket entry dated November 3, 2003.
On May 3, 2007, Petitioner filed "Petition for Relief in Accordance to F.R.C.P. Rule 60(b)(6)" in case number 3:00-CV-1183, the docket number assigned his original habeas filing. With this motion, Petitioner asserted that the "habeas court abused its discretion by not holding an evidentiary hearing on a mixed question of fact and law-ineffective assistance of counsel under the presumption of correctness." (Doc. 9 at 1.) The Court denied the motion by Order of May 18, 2007. (Doc. 11.)
On January 16, 2014, Petitioner filed the motion at issue here: "Motion Requesting to Vacate Judgment Entered on September 22nd, 2000, Due to Exceptional Circumstances in the Discovery of Previous Unavailable Evidence and an Intervening Change in Controlling Law Pertaining to Petitioner's First Timely Filed Habeas Petition Pursuant to Federal Rules of Civil Procedure 60(b)(2) and 60(b)(6) Providing Extraordinary Relief." (Doc. 12.) Petitioner states that "due to trial and direct appellate counsels' dereliction in not investigating and/or presenting the Affidavit [attached to the motion], denied Petitioner his right to due process of law and ineffective assistance of counsel under both the Fourteenth and Sixth United States Constitutional Amendments." (Doc. 12 at 8.) The affidavit referenced is that of Connie M. Riley dated September 3, 1993, in which she states, inter alia, that she was told she could be held in contempt of court if she did not testify at her husband's trial scheduled for February 1993, that she had been subpoenaed to testify, and that she had informed the Assistant District Attorney and her husband's attorney that she did not want to testify. ( See Doc. 12 at 19.) Petitioner asserts the Court has jurisdiction over the instant motion pursuant to Gonzalez v. Crosby, 545 U.S. 524 (2005), citing the case for the proposition that "Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a certain set of limited circumstances, including fraud, mistake and newly discovered evidence." (Doc. 12 at 9.) Petitioner also maintains the court should find his motion timely filed and consider his actual innocence claim pursuant to McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). (Doc. 12 at 11-12.)
As noted above, Magistrate Judge Schwab recommends that the Court deny the motion and not issue a certificate of appealability. (Doc. 15.) The recommended denial is based on the finding that the one-year time limit for filing a motion pursuant to Rule 60(b)(2) has long passed and the time to act under the rule is not to be extended, and the motion cannot proceed under Rule 60(b)(6) because it was not brought within a "reasonable time" and ...