United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE.
se defendant, Jeffrey Schmutzler, confined at the Federal
Medical Center-Devens, Ayer, Massachusetts, pled guilty to
receiving child pornography in violation of 18 U.S.C. §
2252A(a)(2). He has filed a motion under Fed.R.Civ.P.
60(b)(6) seeking relief from the order of April 27, 2015.
That order denied Defendant's motion under 28 U.S.C.
§ 2255 challenging his conviction and sentence. The 2255
motion was filed pro se.
Defendant seeks relief from the order so that he can pursue
the claim he alleges he attempted to set forth in Ground One
of his 2255 motion. He describes that claim as one for the
ineffective assistance of the assistant public defender who
represented him initially in this criminal case. He questions
her failure not to file a motion under Fed. R. Crim. P. 12 to
dismiss the indictment for lack of subject-matter
jurisdiction. The basis of the motion would have essentially
been that Defendant's conduct was wholly intrastate and
that Defendant had thus not committed a federal offense.
asserts we did not address this claim and instead only
resolved an ineffectiveness claim Defendant had made against
counsel who succeeded the assistant public defender. He
asserts our failure to address the claim against the
assistant public defender was the result of his inability as
a pro se litigant “to adequately convey his intended
claim.” (Doc. 121, Rule 60(b)(6) motion, ECF p. 2).
Citing in part, Martinez v. Ryan, 566 U.S. 1, 132
S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Ramirez v. United
States, 799 F.3d 845 (7th Cir. 2015), Defendant
maintains that his pro se status on the 2255 motion justifies
Rule 60(b)(6) relief from the order denying the 2255 motion
so that the claim against the assistant public defender can
April 2013, Defendant was named in a two-count indictment.
Count I charged him with knowingly receiving child
pornography that had been mailed, shipped and transported in
and affecting interstate and foreign commerce by any means,
including by computer, in violation of 18 U.S.C. §
2252A(a)(2) and (b). Count II charged him with possession of
material containing images of child pornography, in violation
of 18 U.S.C. § 2252A(a)(5)(B).
2013, Defendant pled guilty to Count I. In August 2014,
Defendant was sentenced to 108 months' imprisonment. In
February 2015, the Third Circuit affirmed his conviction and
sentence on direct appeal. United States v.
Schmutzler, 602 F.App'x 871 (3d Cir.
2015)(nonprecedential). In April 2015, we denied his 28
U.S.C. § 2255 motion. United States v.
Schmutzler, 2015 WL 1912608 (M.D. Pa. Apr. 27, 2015). In
December 2015, the Third Circuit denied a certificate of
appealability on Defendant's appeal of our order denying
the 2255 motion. United States v. Schmutzler, No.
15-2462 (3d Cir. Dec. 21, 2015). In October 2016, the Third
Circuit denied Defendant's first application to file a
second or successive 2255 motion. In re Schmutzler,
No. 16-3817 (3d Cir. Oct. 27, 2016). In January 2017, the
Third Circuit denied Defendant's second application to
file a second or successive 2255 motion. In re
Schmutzler, No. 17-1001 (3d Cir. Jan. 27, 2017). In
March 2017, we denied Defendant's first Rule 60(b)(6)
motion. United States v. Schmutzler, 2017 WL 930455
(M.D. Pa. Mar. 9, 2017). On June 30, 2107, the Third Circuit
denied a third application to file a second or successive
2255 motion. In re Schmutzler, No. 17-2250 (3d
addition, Defendant filed two unsuccessful 28 U.S.C. §
2241 petitions in the United States District Court for the
District of Massachusetts challenging his conviction. See
Schmutzler v. Grondolsky, No. 16-CV-12308, 2016 WL
7209667 (D. Mass. Dec. 12, 2016).
60(b)(6) allows relief from a judgment for “any other
reason that justifies relief.” It is the catchall
provision of Rule 60(b). Rule 60(b) may be invoked in habeas
cases. Gonzalez v. Crosby, 545 U.S. 524, 534, 125
S.Ct. 2641, 2649, 162 L.Ed.2d 480 (2005)(Rule 60(b) has an
“unquestionably valid role to play in habeas
cases”). To succeed on the motion, Defendant would have
to satisfy Rule 60(b)(6)'s requirement of showing
extraordinary circumstances justifying relief. See
Michael v. Wetzel, 570 F.App'x 176, 180 (3d Cir.
2014)(nonprecedential)(involving a 28 U.S.C. § 2254
2255's gatekeeping provision, 28 U.S.C. § 2255(h),
has an effect on Rule 60(b)'s application to a 2255
motion. Under the gatekeeping provision, we lack jurisdiction
to consider a second or successive 2255 motion unless the
Third Circuit authorizes us to consider it. See Pelullo
v. United States, 352 F.App'x 620, 625 (3d Cir.
2009)(nonprecedential). So that this limitation on the filing
of a second or successive 2255 motion is not circumvented, a
motion under Rule 60(b) will be treated as a 2255 motion if
in substance it presents a claim for relief from the criminal
judgment. Gonzalez, 545 U.S. at 531-32, 125 S.Ct. at
2647-48. This will happen if the Rule 60(b) motion
(1) presents a new claim for relief from the criminal
judgment or (2) presents a claim that the court's
resolution of a previous claim in section 2255 proceedings
attacking the criminal judgment was erroneous. Id.
at 532, 125 S.Ct. at 2648. On the other hand, if a Rule 60(b)
motion only challenges “some defect in the integrity of
the federal habeas proceedings, ” id., 125
S.Ct. at 2648 (footnote omitted), or the district court's
“failure to reach the merits, ” it is not treated
as a 2255 motion. Id. at 538, 125 S.Ct. at 2651.
asserts he has filed a proper Rule 60(b)(6) motion because
under Martinez a lack of counsel in postconviction
proceedings constitutes cause for defaulting on an
ineffectiveness-of-trial-counsel claim, and under
Ramirez when those circumstances are present in 2255
proceedings, a defendant may rely on Rule 60(b)(6) to present
the defaulted claim. Defendant therefore argues he can employ
Rule 60(b)(6) here because his pro se status in his 2255
proceedings prevented him from adequately presenting his
trial counsel ineffectiveness claim.
disagree. Martinez dealt with procedural default of
a claim in state court collateral proceedings and when that
default could be excused so that the claim could be
adjudicated in a federal habeas proceeding; it did not deal
with federal proceedings. As the Court in Martinez
stated: “Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an
initial-review collateral proceeding, a procedural default
will not bar a federal habeas court from hearing a
substantial claim of ineffective assistance at trial if, in