United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge.
18, 2014, a jury convicted Defendant of four counts, of
coercion and enticement, travel with intent to engage in
illicit sexual conduct, transportation of child pornography,
and possession of child pornography, in violation of 18
U.S.C. §§ 2422(b), 2423(b), 2252(a)(1), and
2252(a)(4)(B). On December 10, 2014, Defendant was sentenced
to a total term of imprisonment of 324 months, followed by a
life term of supervised release. In a non-precedential
Opinion filed December 3, 2015 (“Ct. App.
Opinion”), a panel of the Court of Appeals for the
Third Circuit affirmed his conviction and sentence. On
December 7, 2015, Defendant filed a Motion to Vacate pursuant
to 28 U.S.C. § 2255, arguing various instances of
ineffective assistance of counsel. That Motion was assigned
to civil docket No. 16-1826. The Court issued notice pursuant
to United States v. Miller, 197 F.3d 644 (3d Cir.
1999). Defendant responded with a formal notice stating his
intention to proceed with his Motion as filed. Then, on
November 7, 2017, following several extensions of time,
Defendant filed another lengthy Motion to Vacate. That Motion
was assigned to civil docket No. 17-1453.
Opinion and Order dated April 26, 2018 (“April 26
Order), after Defendants' Motions had been fully briefed,
the Court denied both Motions. Defendant filed a
“motion for clarification” with the Court of
Appeals, which the Court of Appeals construed as a request
for a certificate of appealability of this Court's April
26 Order. By Order dated November 21, 2018, The Court of
Appeals denied Defendant's request, finding as follows:
[R]easonable jurists would not debate the District
Court's conclusion that Appellant's claims raised in
his “first 2255 motion, ” including his claims of
ineffective assistance of counsel, are
meritless….[J]urists of reason would not debate that
the claims in [Defendant's Motion filed at 17-1453] were
either time-barred…or failed to state a valid claim
for the denial of a constitutional right. Before the Court is
Defendant's Motion pursuant to Fed.R.Civ.P. 60(b)(6).
following reasons, Defendant's Motion will be denied.
SECOND OR SUCCESSIVE PETITION
I will consider whether Defendant's Motion is a
“true” Rule 60 motion, or instead a
“disguised” second or successive Section 2255
petition. Gonzalez v. Crosby, 545 U.S. 524, 125
S.Ct. 2641, 162 L.Ed.2d 480 (2005). If it qualifies as the
latter, the request for relief is subject to 28 U.S.C. §
2255(h), which requires certification from the Court of
Appeals. A Rule 60(b) Motion in this context is not a
"true" Rule 60 motion if the movant is
"'seek[ing] vindication of' or
'advanc[ing]' a claim by taking steps that lead
inexorably to a merits-based attack on the prior dismissal of
his habeas petition.'" Taylor v. Wetzel,
No. 4-553, 2014 U.S. Dist. LEXIS 146782, at **17-18 (M.D. Pa.
Oct. 15, 2014) (quoting Post v. Bradshaw, 422 F.3d
419, 424-25 (6th Cir. 2005)).
Court of Appeals has stated:
[I]n those instances in which the factual predicate of a
petitioner's Rule 60(b) motion attacks the manner in
which the earlier habeas judgment was procured and not the
underlying conviction, the Rule 60(b) motion may be
adjudicated on the merits. However, when the Rule 60(b)
motion seeks to collaterally attack the petitioner's
underlying conviction, the motion should be treated as a
successive habeas petition.
Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir.
present case, Defendant's Motion is based on his
assertion that counsel was ineffective because “he
failed to read the charging statute to discover if it
criminalized the alleged conduct that Mr. Hilts was accused
of.” In terms of this alleged error, Defendant asserts
that he “was then deprived of an opportunity to raise
this plain error in direct appeal because it was caused by
counsel error, ” because of the “Lower
Court's belief that the Massaro holding forbids the
raising of an ineffective assistance of counsel claim in
direct appeal.” He also indicates that because he did
not have counsel to assist him in bringing his ineffective
assistance claim in his initial Section 2255 Motion, he was
deprived of a meaningful opportunity to raise his present
Defendant couches his claim in terms that superficially
implicate the Section 2255 process, he does not attack a
defect in the proceeding. There is no absolute constitutional
right to counsel in a Section 2255 proceeding. Donna v.
United States, No. 10-1607, 2011 U.S. Dist. LEXIS 9142,
at *24 (D.N.J. Jan. 31, 2011). Defendant also suggests that
courts have ignored the principle that some ineffective
assistance claims may be raised on direct review, as
enunciated in Massaro v. United States,538 U.S. 500
(2003). This, he asserts, somehow prevented him from raising
his present claim. It is true, however, that “[w]ith
respect to allegations of ineffective assistance of counsel,
such arguments are properly raised under § 2255 rather
than on direct appeal.” United States ...