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Givens v. Kyler

United States District Court, E.D. Pennsylvania

December 8, 2014

ISAIAH GIVENS,
v.
KENNETH D. KYLER ET AL

MEMORANDUM OPINION

TIMOTHY SAVAGE, District Judge.

Relying on the Supreme Court's recent decision in Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911 (2013) as a basis for relief from the order dismissing his habeas petition as untimely, petitioner Isaiah Givens ("Givens"), a state prisoner, has filed a pro se motion under Federal Rule of Civil Procedure 60(b)(5) "due to a change in decisional law." He contends that because counsel in his initial Post-Conviction Relief Act ("PCRA") proceeding was ineffective, he should be permitted to assert his ineffective assistance of counsel claims, which we concluded were procedurally defaulted.

Givens is not challenging his state court conviction. Instead, he seeks to establish cause for his procedural default that resulted in the dismissal of his federal habeas petition ten years ago. The issue is whether Rule 60(b)(6) can be used to apply Trevino to excuse Givens' procedural default ten years after the dismissal of his habeas petition.

After conducting a careful review of the facts, we conclude that extraordinary circumstances are not present and Trevino, both by itself and together with all those facts, does not support granting Givens relief under Rule 60(b). Therefore, we shall deny his motion.

Procedural History[1]

State Proceedings

On May 19, 1983, after a jury trial, Givens was convicted of two counts of first degree murder, six counts of aggravated assault, and one count each of possession of an instrument of crime and criminal conspiracy.[2] He filed a pro se post-verdict motion raising ineffectiveness of trial counsel on April 30, 1984. Instead of appointing new counsel to replace trial counsel, the court appointed counsel to represent Givens on his ineffectiveness of counsel claim only and allowed trial counsel to represent him on all other post-trial issues.[3] On March 27, 1987, after an evidentiary hearing, the post-verdict motion was denied.[4] Givens was sentenced to two consecutive terms of life imprisonment and six consecutive five-to-ten year terms.[5]

Trial counsel filed a direct appeal to the Pennsylvania Superior Court. On appeal, trial counsel raised seven grounds, none of which challenged his ineffectiveness at trial.[6] During the appeal, Givens never heard from counsel appointed to represent him at the post-trial proceedings on his ineffectiveness of trial counsel claim.[7]

The Superior Court affirmed his conviction on July 25, 1989. Com. v. Givens, 564 A.2d 1003 (Pa.Super. Ct. 1989) (table); No. 1356 Phila. 1987 (Pa.Super. Ct. July 25, 1989) (unpublished memorandum). In its opinion, the Superior Court agreed with the trial court, concluding that all seven of the issues Givens raised were either meritless or had been waived. Givens did not file a timely petition for allocatur in the Pennsylvania Supreme Court. His petition for allowance of appeal nunc pro tunc was denied on January 30, 1990.[8]

On January 16, 1990, Givens, acting pro se, timely filed his first PCRA petition.[9] After counsel was appointed, she filed an amended petition.[10] The amended petition asserted that trial counsel was ineffective in several ways: (1) inadequately preparing witnesses; (2) failing to call witnesses and to elicit favorable testimony from witnesses; (3) failing to defend himself when he was accused of violating evidentiary rules; (4) failing to subpoena evidence; (5) making a poor closing argument; (6) failing to object to the prosecutor's closing argument; (7) failing to advocate at sentencing; and (8) failing to preserve issues raised at trial.[11] After his first PCRA counsel passed away, Givens was appointed new PCRA counsel.[12] His second PCRA counsel did not further amend his PCRA petition.[13]

The PCRA court, finding that none of Givens' claims had merit, denied his petition on September 30, 1994. See Com. v. Givens, Nos. 407-424 (Phila. Ct. Cm. Pl. Sept. 30, 1994).[14] On appeal, Givens raised one issue - whether all prior counsel were ineffective for failing to challenge his conviction as against the weight of the evidence. The Superior Court dismissed the appeal because Givens had waived the issue. Com. v. Givens, No. 3811 Phila. 1994, at 3 (Pa.Super. Ct. May 24, 1996) (unpublished memorandum). Therefore, the Superior Court affirmed the trial court's denial of PCRA relief on May 24, 1996. Com. v. Givens, 679 A.2d 845 (Pa.Super. Ct. 1996) (table). Givens did not petition for allowance of appeal in the Pennsylvania Supreme Court.[15]

With the aid of counsel, Givens filed a second PCRA petition on December 4, 1996. After firing counsel, he amended his petition pro se. [16] His petition was dismissed as untimely on February 11, 2000.[17] Givens appealed to the Superior Court claiming that: (1) PCRA counsel was ineffective for failing to address the PCRA court's failure to send him a notice of intent to dismiss; (2) all prior counsel were ineffective for failing to raise a claim of prosecutorial misconduct for statements made during closing argument; (3) the Commonwealth failed to disclose that a rebuttal witness had aliases, an open theft case and convictions for crimen falsi crimes; and (4) "all prior counsel were ineffective for failing to investigate, develop and preserve the issue of the Commonwealth's alleged concealment of a plea arrangement with [a prosecution witness]".[18]

Finding the petition untimely, the Superior Court affirmed the dismissal on May 14, 2001. Com. v. Givens, 778 A.2d 1242 (Pa.Super. Ct. 2001) (table). On October 9, 2001, the Pennsylvania Supreme Court denied Givens' petition for allocatur. [19]

Federal Proceedings

Givens filed a petition for leave to file a second or successive habeas petition in the Third Circuit Court of Appeals on January 10, 2002. In re Isaiah Givens, No. 02-1088. The petition was deemed unnecessary because his previous habeas petitions[20] had been dismissed without prejudice for failure to exhaust state remedies.[21]

On April 26, 2002, Givens filed a third petition for a writ of habeas corpus. He asserted four claims: (1) violation of his due process rights due to inordinate delay during post-trial, appellate and collateral proceedings; (2) ineffective assistance of all prior counsel for failing to preserve the issue of prosecutorial misconduct regarding the prosecutor's statement during closing argument about a witness' "deal for county time"; (3) all prior counsel were ineffective for failing to preserve the issue of trial counsel's ineffectiveness where he did not investigate the criminal history of a Commonwealth rebuttal witness; ...


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