United States District Court, E.D. Pennsylvania
DRAYE D. DURHAM, Petitioner,
JOSEPH J. PIAZZA, THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
JAN E. DUBOIS, District Judge.
Petitioner Dray D. Durham ("Durham") is currently serving an aggregate 55 to 110 year sentence in Pennsylvania for his state conviction for five counts of robbery, five counts of terroristic threats, and two counts of possession of an instrument of crime. Presently before the Court is Durham's "Motion to Vacate the District Judge's Order and Memorandum Dated the 11th Day of February 2011, Pursuant to Federal Rules of Civil Procedure 60(B)(6)" ("Rule 60(b) Motion"). Durham argues that the judgment should be vacated because the decisions in Cox v. Horn, 757 F.3d 113 (3d Cir. 2014) and Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012) allow this court to consider his procedurally defaulted claims. The Court rejects Durham's arguments and dismisses the Rule 60(b) Motion as untimely filed.
The facts of this case have been set forth in the previous Opinion of this Court. See, 2011 WL 612724 (E.D. Pa. Feb. 11, 2011). Accordingly, the Court recounts only those facts necessary to resolve the Rule 60(b) Motion.
Following his conviction and sentencing, Durham filed an appeal with the Pennsylvania Superior Court. The Superior Court affirmed the sentence on April 24, 2003. Commonwealth v. Durham, 828 A.2d 396 (Pa. Super 2003). The Pennsylvania Supreme Court denied Durham's Petition for Allowance of Appeal on October 15, 2003. Commonwealth v. Durham, 834 A.2d, 1141 (Pa. 2003).
Durham filed a pro se petition for post-conviction relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541, et seq. on March 8, 2004. The PCRA court dismissed the petition on November 17, 2005. Durham appealed and the Pennsylvania Superior Court affirmed the PCRA court's dismissal on January 11, 2007. The Pennsylvania Supreme Court denied Durham's Petitioner for Allowance of Appeal on September 28, 2007. Commonwealth v. Durham, 932 A.2d 1286 (Pa. 2007).
Durham filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this Court on October 16, 2007. By Order dated February 11, 2011, the claims Durham raised in the petition were either dismissed with prejudice or denied. The United States Court of Appeals for the Third Circuit denied Durham's request for a certificate of appealability on July 1, 2011, on the ground that he did not make a substantial showing of the denial of a constitutional right for essentially the reasons explained in the District Court's February 11, 2011 Memorandum and Opinion.
Durham filed a Petition for Rehearing with Suggestion for Rehearing en bane in the Third Circuit on September 20, 2011. Thereafter he filed a Motion to Stay his Petition for Rehearing with Suggestion for Rehearing en bane pending the United States Supreme Court decisions in Perry v. New Hampshire, 565 U.S. ___, 132 S.Ct. 716 (2012), and Martinez v. Ryan, 566 U.S. ___, 132 S.Ct. 1309 (2012), which was granted on September 30, 2011.
The opinion in Martinez v. Ryan , was filed on March 20, 2012. Thereafter, Durham filed a Motion to Lift the Stay and to File a Supplement to Petition for Rehearing in which he argued, inter alia, his Martinez claims. That Motion was granted by the Court of Appeals on May 1, 2012. By Order dated May 24, 2012, the Court of Appeals denied Durham's Petition for Rehearing with Suggestion for Rehearing en bane in which he sought to address, inter alia, his Martinez claims.
Durham took no further action in the case until December 29, 2014. On that date he filed the pending Rule 60(b) Motion.
III. LEGAL STANDARD
Rule 60(b) provides, in relevant part, that relief from judgment may be granted on the following grounds:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable ...