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United States v. Schmutzler

United States District Court, M.D. Pennsylvania

July 13, 2017

UNITED STATES OF AMERICA
v.
JEFFREY SCHMUTZLER, Defendant

          MEMORANDUM

          WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE.

         I. Introduction

         The pro 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.

         Specifically, 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.

         Defendant 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 be adjudicated.

         II. Background

         In 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).

         In July 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 Cir.).

         In 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).

         III. Discussion

         Rule 60(b)(6) allows relief from a judgment for “any other reason that justifies relief.” It is the catchall provision of Rule 60(b).[1] 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 petition).

         Section 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.[2] 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.

         Defendant 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.

         We 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 the ...


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