United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge.
April 3, 2015, Petitioner, Terrence Upshaw, a federal inmate
currently incarcerated at United States Penitentiary,
Lewisburg, Pennsylvania (“USP-Lewisburg”), filed
a habeas petition pursuant to 28 U.S.C. § 2241. (Doc.
1). On August 24, 2015, the petition was dismissed for lack
of jurisdiction and without prejudice to Petitioner
requesting leave to file a second or successive section 2255
motion with the United States Court of Appeals for the Second
Circuit. (Docs. 8, 9). On September 8, 2015, Petitioner filed
a notice of appeal. (Doc. 10). On February 16, 2016, the
United States Court of Appeals for the Third Circuit affirmed
this Court's August 24, 2015 Memorandum and Order. (Doc.
14). On February 24, 2016, Petitioner filed an action to
obtain relief from judgment or order pursuant to Federal Rule
of Civil Procedure 60. (Doc. 15). On March 28, 2016, the
Third Circuit issued its Mandate in this matter. (Doc. 16).
For the reasons stated below, Petitioner's motion for
relief from judgment filed pursuant to Federal Rule of Civil
Procedure 60 will be denied.
Rule of Civil Procedure 60(b) entitles the moving party to
relief from judgment on several grounds, including the
catch-all category ‘any other reason justifying relief
from the operation of the judgment' . . . .”
Silfies v. Walsh, 2013 U.S. Dist. LEXIS 84503, at *4
(M.D. Pa. June 17, 2013) (Kane, J.) (quoting Fed.R.Civ.P.
60(b)(6)). A Rule 60 motion must be “brought
‘within a reasonable time, ' . . . and requires a
showing of ‘extraordinary circumstances.'”
Id. (quoting Gonzalez v. Crosby, 545 U.S.
524, 535 (2005)). Further, as for Rule 60(b)(6) motions,
“‘courts are to dispense their broad powers under
[Rule] 60(b)(6) only in ‘extraordinary circumstances
where, without such relief, an extreme and unexpected
hardship would occur.'” Cox v. Horn, 757
F.3d 113, 120 (3d Cir. 2014) (quoting Sawka v.
Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)).
states that he “would like to bring to this Court's
attention after the filing of his pending petition, and all
relevant related documents, [p]ertinent case law which should
be considered but would otherwise escape attention, and
offers an unique perspective.” (Doc. 15, p. 4).
According to Petitioner, “[u]nder the facts of this
case, the Court may be persuaded by the recent United States
Supreme [C]ourt decision in Montgomery v. Louisiana,
No. 14-230 (Jan. 25, 2016), holding that its prior decision
in Miller v. Alabama, 567 U.S. (2012), is
retroactive to cases on collateral review.”
(Id.). Petitioner continues by stating that in
Montgomery the Supreme Court of the United States
also “clarified [its] analysis in Teague v.
Lane, 489 U.S. 258 (1989); that a new rule of
constitutional dimension may have both procedural and
substantive components, and both must be given due
consideration; and that a new rule may be substantive even
where it affects only the sentence and does not upset the
conviction.” (Doc. 15, p. 4). “In sum, ”
Petitioner claims, “Montgomery supports that
this Court clearly has the authority to reach the merits of
Petitioner's claims.” (Id.).
first question presented by Petitioner's motion is
whether that filing should be considered a second or
successive habeas petition or a genuine Rule 60(b) motion for
relief from judgment. Riley v. Myers, 2014 U.S.
Dist. LEXIS 60639, at *12 (M.D. Pa. May 1, 2014) (Conaboy,
J.) (citing Burton v. Stewart, 549 U.S. 147, 157
(2007); Pridgen v. Shannon, 380 F.3d 721, 725 (3d
Cir. 2004)). “The question whether the Rule 60 motion
is second or successive is close.” United States v.
Doe, 801 F.3d 132, 151 (3d Cir. 2015). “A
determination that the Rule 60(b) motion was in essence a
successive habeas petition means that under AEDPA the
District Court did not have jurisdiction to entertain the
motion because the Court had not authorized [the petitioner]
to file a successive habeas petition.”
Pridgen, 380 F.3d at 725 (citing 28 U.S.C. §
2244(b)); see Parham v. Klem, 496 F. App'x 181,
184 (3d Cir. 2012). “The fundamental point of 60(b) is
that it provides a grand reservoir of equitable power to do
justice in a particular case.” Cox, 757 F.3d
at 122 (internal quotation marks omitted). “[C]ourts
are to dispense their broad powers under 60(b)(6) only in
extraordinary circumstances where, without such relief, an
extreme and unexpected hardship would occur.”
Id. at 120. “And just as ‘we have not
embraced any categorical rule that a change in decisional law
is never an adequate basis for Rule 60(b)(6) relief, '
[Cox, 757 F.3d] at 121, it would be nonsensical to
hold as a categorical matter that a person with
constitutionally adequate counsel can never qualify for Rule
60(b) relief.” Doe, 810 F.3d at 152.
“But a change in decisional law, without more, is not
enough to warrant Rule 60 relief.” Id. (citing
Cox, 757 F.3d at 115).
in Gonzalez v. Crosby, 545 U.S. 524 (2005), the
United States Supreme Court “held that a 60(b) motion
should be treated as a second or successive habeas petition
if it ‘seeks vindication' of a
‘claim.'” Parham, 496 F. App'x
at 184 (Gonzalez, 545 U.S. at 531). The Supreme
Court “defined a ‘claim' in this context as
‘an asserted federal basis for relief from a state
court's judgment of conviction.'”
Parham, 496 F. App'x at 184 (quoting
Gonzalez, 545 U.S. at 530). Importantly, however,
the Supreme Court went on to state that a Rule 60(b) motion
does not constitute a second or successive petition when the
petitioner “merely asserts that a previous ruling which
precluded a merits determination was in error-for example, a
denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar.”
Gonzalez, 545 U.S. at 532 n.4. Also, “[w]hen
‘“no claim” is presented, there is no basis
for contending that the Rule 60(b) motion should be treated
like a habeas corpus application.'” Allen v.
Walsh, 2013 U.S. Dist. LEXIS 49688, at *9, adopted
by, 2013 U.S. Dist. LEXIS 48714 (W.D. Pa. Apr. 4, 2013)
(quoting Gonzalez, 545 U.S. at 533).
Antiterrorism and Effective Death Penalty Act of 1996
(‘AEDPA') specifically references and sets forth
the procedure by which a prisoner may challenge his
conviction on the basis of a ‘new rule of
constitutional law' in §§ 2244(b)(2)(A) and
2255(h)(2).” Hernandez v. United States, 2015
U.S. Dist. LEXIS 93849, at *6-7 (D.N.J. July 20, 2015). Here,
Petitioner's section 2241 petition was dismissed because
this Court lacked jurisdiction because Petitioner failed to
show that section 2255 was an inadequate or ineffective
mechanism for challenging the validity of his sentence.
See Upshaw v. Ebbert, 2015 U.S. Dist. LEXIS 111462
(M.D. Pa. Aug. 24, 2015) (Nealon, J.), aff'd,
634 F. App'x 357 (3d Cir. 2016).
argues in the instant motion that the section 2241 habeas
petition filed in this action was improperly denied.
See (Doc. 15). As stated above, according to
Petitioner, this Court can now properly consider the merits
of his claims because of recent Supreme Court case law that
has been made retroactive to cases on collateral review.
(Id. at p. 4) (citing Montgomery v.
Louisiana, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016);
Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012)). However, this contention renders Petitioner's
instant motion a successive petition under 2255.
“a change of law does not convert Petitioner's
filing into a permissible motion for reconsideration under
the Federal Rules of Civil Procedure.”
Hernandez, 2015 U.S. Dist. LEXIS 93849, at *6
(citing Gonzalez, 545 U.S. at 531). This is because
a Rule 60(b) motion based on “a purported change in the
substantive law governing the claim” improperly
circumvents section 2244(b)'s requirement that successive
claims be “precertified by the court of appeals.”
Gonzalez, 545 U.S. at 531; see Johnson v.
Wynder, 408 F. App'x 616, 619 (3d Cir. 2010) (citing
Gonzalez, 545 U.S. at 531). Importantly,
“Petitioner, like this Court, is bound by the
AEDPA.” Hernandez, 2015 U.S. Dist. LEXIS
93849, at *7. Therefore, “this Court lacks jurisdiction
to entertain” Petitioner's successive petition
“absent authorization from the Court of Appeals.”
Hernandez, 2015 U.S. Dist. LEXIS 93849, at *7.
furtherance of this conclusion, the Court notes that at least
one district court from the Third Circuit has found that a
petitioner's Rule 60(b) motion based on
Montgomery was “a successive § 2254
petition and cannot be considered by this Court without prior
authorization by the Court of Appeals.”
Bradley, 2016 U.S. Dist. LEXIS 84624, at *6,
adopted by, 2016 U.S. Dist. LEXIS 97097. Here, like
in Bradley, Petitioner is relying on
Montgomery to argue that he is entitled to Rule
60(b) relief. (Doc. 15, p. 4). Thus, his Rule 60(b) motion
will be considered a successive section 2255 petition, and,
thus, cannot be considered by this Court without prior
authorization by a Court of Appeals. Id.
as was the case when this Court issued its August 24, 2015
Memorandum and Order, there is no indication in the record
that Petitioner has obtained an order from this Circuit, or
any other, authorizing a second or successive habeas
petition. As a result, this Court lacks jurisdiction to
consider Petitioner's successive section 2255 petition.
On that ground, Petitioner's successive petition will be