United States District Court, W.D. Pennsylvania
JANINE M. ORIE, Plaintiff,
STEPHEN D. ZAPPALA, et al., Defendants.
R. Hornak U.S. District Judge
habeas proceeding, this Court previously adopted the Report
and Recommendation ("R&R") of the Magistrate
Judge that the Petition be dismissed on the grounds that the
Petitioner was not, and had never been, "in
custody" as is required to pursue such relief.
Maleng .v Cook, 490 U.S. 488, 490-91
(1989). The R&R itself; ECF No. 31, as do the Federal
Rules of Civil Procedure, Fed.R.Civ.P. 72(b)(2), and our
Local Rules of Court, LcvR 72.D.2, provided notice that any
Objections to the R&R had to be filed within fourteen
(14) days of the issuance of the R&R. Notice was given on
the docket that any such Objections had to be filed on or
before June 9, 2016. ECF No. 31.
date came and went, and no Objections to the R&R were
filed by any party. Nonetheless, this Court waited. And
waited some more. Then on June 30, 2016, this Court entered
an Order and Judgment adopting the R&R as the Opinion of
the Court, dismissing the petition, and denying a certificate
of appealability. ECF Nos. 32, 33. All of that appeared on
the ECF docket on June 30, 2016.
weeks went by, and then on July 13, 2016, the Petitioner
through counsel filed a Motion for Reconsideration and
Objections, ECF Nos. 34, 35. This Court ordered responses,
which were filed by Respondents on July 20, 2016, ECF Nos.
38, 39, and the Petitioner replied the next day, ECF No. 40.
The guts of the Motion for Reconsideration, which is really a
Motion for Relief from Judgment under Fed.R.Civ.P. 60(b), is
that Petitioner's counsel saw this Court's Order and
Judgment that adopted the R&R when it hit the docket, and
that he gave it to his legal assistant, assuming that the
legal assistant would get it to the Petitioner, which
apparently never happened. Notably missing is any assertion
that the legal assistant was directed by counsel to so
transmit the R&R, or any basis for counsel to conclude
that it in fact was or would be so delivered (for instance,
some assertion about "usual practice" within the
office, some sort of standard operation procedure, etc.). The
"excusable neglect" asserted by counsel is that he
assumed his legal assistant would send the R&R to the
Petitioner, that did not happen, and then when there was a
story in the newspapers about this Court's adoption of
the R&R, it was then that the Petitioner contacted
counsel, and that led him to file this Motion for
Reconsideration, and Objections. ECF No. 34.
Petitioner says that that scenario fits within the rubric of
"excusable neglect" under Rule 60(b) because the
delay in the filing was relatively short (about five weeks),
there is real prejudice to the Petitioner (she is out of this
Court), that the Petitioner has a meritorious position on the
merits, and that the Respondents will not be prejudiced by
this Court's after-the-fact consideration of the
Objections. The Petitioner recognizes that these collectively
and individually are essentially equitable considerations for
this Court to consider, and are to be considered in totality.
Pioneer Inv. Servs. Co. v. Brunswick Associates Ltd.
P'ship, 507 U.S. 380, 388 (1993); Nara v.
Frank, 488 F.3d 187, 193-94 (3d Cir. 2007). Our Court of
Appeals notes with particular reference the consideration of
the danger of prejudice to the non-moving party, the length
of delay and impact on judicial proceedings, the reason for
the delay and whether it was within the movant's control,
and whether the movant acted in good faith. Id; see
Balyan v. Baldwin, 566 F.App'xl75(3dCir. 2014).
consider the Petitioner's arguments one by one. It is
true that the delay here was about 34 days, which is not
overly long, but is surprisingly long in terms of the time
between this Court's Order and Judgment appearing on the
docket and the Petitioner filing her Motion and Objection.
Thus, the Court concludes that this factor is a neutral. As
to prejudice to the Respondents, as to their ultimate legal
position, it would not appear to prejudice them, and had the
Objections been filed on time, presumably the Respondents
would have nonetheless filed a response to them. But given
the Petitioner's delay, the Respondents have had to file
a response to the Motion for Reconsideration, which is extra
work that they would not have had to do. That is some
prejudice, but not a lot. This too is a neutral factor.
prejudice to the Petitioner if the Motion were not granted,
there is prejudice in the sense that right now, she is out of
Court (at least this one), but that would seem to be the case
in every Rule 60(b) situation, so that is not a factor in her
favor. As to her having a meritorious legal position, for the
reasons noted below, the Court concludes that she does not.
Finally, as to whether this whole situation was within the
movant's control/whether there is ''excusable
neglect'Vwhether the Petitioner has acted in good faith,
here is how the Court sees it.
the Petitioner's counsel at his word, this problem is
principally of his doing. The Court is in no hurry to get
into the business of defining "best practices" for
the law offices of the multitude of lawyers that appear
before it. That said, by any measure, any lawyer operating on
the "assumption" that his or her legal assistant
will or will not do something, absent some fact-based
assertion that there was some sort of system or
"standard operating procedure" in place is playing
with fire. While there is no showing of malicious "bad
faith" on the part of the Petitioner herself or counsel,
nor some personal delay on her part, the Court is also struck
by the reality that even after this Court's Order and
Judgment adopting the R&R hit the docket, and then
presumably the newspapers, it still took nearly two weeks for
the Petitioner to file her Objections.
all in, the Court finds it difficult to conclude that there
was "excusable" neglect present in this case,
particularly given that the Court would find, for the reasons
stated, that the "neglect" in the Petitioner's
lawyer communicating with her was not really
"excusable", nor was the nearly two week delay in
addressing that on the Court's docket after the
fumble was observed by the Petitioner herself (and about five
weeks on the part of her lawyer from when the objections were
first due). Thus, the Court concludes that there is no basis
to reopen its Judgment based on the application of the Rule
60(b) factors. Nonetheless, because the Court also concludes
that the Objections, late-filed though they are, are without
merit, and because it is entirely possible the Petitioner
will file an appeal, the Court will nonetheless address the
Objections on the merits, noting that courts should
reconsider their prior orders only when (1) there is an
intervening new legal rule (not asserted here), (2) there are
new facts that were unavailable at the time the original
order were entered (not the case here), or (3) failing to
reconsider would work a "manifest injustice" (that
appears to be the Petitioner's argument here). See
Max's Seafood Cafe ex. rel Lou-Ann, Inc. v.
Quinteros, 176 F, 3d 669 (3d Cir. 1999).
Court will not recite again the procedural situation as
recounted in the R&R. It appears undisputable that the
Petitioner was convicted on state charges set forth in two
sets of charges, bearing the state court docket numbers of
CC201115981 ("2011 Charge"), and CC 201010286
("2010 Charge"). On May 7, 2013, she was expressly
sentenced on the 2011 Charge. ECF No. 29-5 at 14-16. At that
same proceeding, it appears that after inquiry from defense
counsel as to the disposition of the 2010 Charge, the
sentencing court stated that "no further penalty"
was imposed on that 2010 Charge. ECF No. 29-5 at 17-19. The
Petition here is filed only as to the 2010 Charge, R&R at
2, and Petitioner's claim is that her retrial on that
2010 Charge should have been barred after the prior grant of
a mistrial. She says that this Court should conclude that
there had been a "functional consolidation" of the
2010 and 2011 Charges for sentencing, and that contrary to
the R&R, she was therefore "in custody" for
purposes of 28 U.S.C, § 2254 on the 2010 Charge based on
the sentence actually imposed on the 2011 Charge. The
Petitioner is wrong.
the Petitioner relies on statements contained in Buford
v. United States, 532 U.S. 59 (2001) for the application
of the "functional consolidation" doctrine. That
case is not a habeas case, but instead is a case interpreting
the Career Offender provisions of the federal Sentencing
Guidelines. The Petitioner has not cited to, nor has this
Court found, any cases applying or considering the
"functional consolidation" doctrine in the habeas
context, nor in the context of the "in custody"
requirement of § 2254.
Buford, the issue before the Supreme Court was the
standard of appellate review of the exercise of a federal
sentencing court's judgment in determining whether
underlying, prior criminal charges were so
"related" for purposes of the Sentencing Guidelines
that they that they should be treated as one predicate
offense for application of the Career Offender provisions of
the Guidelines, U.S.S.G. §§ 4B1.1, 4A1.2(a)(2). As
Justice Breyer stated, it presented a "narrow question
of sentencing law, " 532 U.S. at 60, and the issue
before the Supreme Court was not whether and when sentences
should be deemed "consolidated" under what appears
to be a doctrine applied in the Seventh Circuit (we are in
the Third, of course), id. at 61, but only one of
defining the appropriate standard of review to be applied by
a reviewing court to a trial court's determination of
whether there had been a "functional consolidation"
of sentences for Guidelines purposes. Id. at 60, 66.
of all of that, this Court concludes that Buford
does not help the Petitioner on the merits. In that case,
there were separate charges on robbery and drug counts in the
underlying state proceeding. Buford entered guilty pleas to
all of them in different proceedings before different state
judges. Nonetheless, all of the resulting convictions were
sent to the same state judge for sentencing, sentencing
arguments on all counts were heard at the same time, and the
state sentencing judge ordered that all sentences imposed on
all counts run concurrently one to another. Id. at
62. Nonetheless, the subsequent federal sentencing judge in
Buford's later federal armed bank robbery case concluded
that for Career Offender purposes the state sentences were
not consolidated for sentencing, either functionally
or otherwise, and should be treated as separate convictions
and sentences. Id. at 62-63. The Seventh Circuit
affirmed, id., as did the Supreme Court.
Id. at 66. In Buford, the sentencing court
did some things that the sentencing court did not do here-it
entered an actual sentence on every count of conviction, and
then expressly ordered them to run concurrent with one
another, yet they were not treated as
"consolidated." In contrast, here the sentencing
court expressly entered "no further penalty" as to
the 2010 Charge, and made no concurrency order at all.
record here reveals that there was no
"consolidation" of sentences in this case,
"functional" or otherwise. The state sentencing
court expressly sentenced the Petitioner on the conviction
arising from the 2011 Charge, and then expressly stated that
there was "no further penalty" as to the 2010
Charge. The state court sentencing orders are separate from
one another, and reflect just that. ECF No. 29-5 at 14-19.
That is very different than, for instance, even saying that a
sentence as to the 2010 Charge was imposed, and would run
concurrently with the sentence on the 2011 Charge. None of
that happened here. There was never any order that committed
the Petitioner to any sort of custody on the 2010 Charge, and
in addition, because of that, she was not then, and would not
in the future, be at any risk of later going into custody on
the 2010 Charge. There was "no" penalty imposed by
the state sentencing court on the 2010 Charge, and the state
sentencing orders show no linkage of them. That the
sentencing court was aware of the conduct leading to the
conviction on the 2010 Charge, and considered it in imposing
the sentence he actually did impose, which is the ...