Moses v. Joyner

• Decision Date: 08 March 2016
• Docket Number: No. 15–2.,15–2.
• Citation: 815 F.3d 163
• Parties: Errol Duke MOSES, Petitioner–Appellant, v. Carlton JOYNER, Warden, Central Prison, Respondent–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

815 F.3d 163

Errol Duke MOSES, Petitioner–Appellant,

v.Carlton JOYNER, Warden, Central Prison, Respondent–Appellee.

No. 15–2.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 26, 2016.

Decided: March 8, 2016.

ARGUED:Shelagh Rebecca Kenney, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Peter Andrew Regulski, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee. ON BRIEF:Kenneth J. Rose, Center for Death Penalty Litigation, Durham, North Carolina, for Appellant. Roy Cooper, Attorney General of North Carolina, North Carolina Department of Justice, Raleigh, North Carolina, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON and NIEMEYER, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON

wrote the opinion, in which Chief Judge TRAXLER and Judge NIEMEYER joined.

WILKINSON

, Circuit Judge:

Appellant Errol Moses challenges the district court's denial of his motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6)

. He argues that the court abused its discretion in finding that the motion was untimely under Rule 60(c). He further contends that the trial court erred in concluding that the change in post-conviction procedural default rules fashioned by Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, ––– U.S. ––––, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013), did not constitute the kind of "extraordinary circumstance" needed to reopen his case. For the reasons that follow, we affirm.

I.

On November 14, 1997, a North Carolina jury convicted Moses of two counts of first-degree murder for the killings of Ricky Griffin and Jacinto Dunkley. State v. Moses, 350 N.C. 741, 745–50, 517 S.E.2d 853, 857–60 (1999)

. In the early morning hours of November 25, 1995, Moses had visited Griffin's house to follow up on a drug sale and fired three shots at Griffin's head, two "from a range of approximately two feet or less." Id. at 746, 517 S.E.2d 853. Two months later, on January 27, 1996, Moses drove to Dunkley's home in a stolen vehicle and threatened Dunkley with a handgun, demanding to know where Dunkley hid his money. Id. at 747–50, 517 S.E.2d 853. When Dunkley failed to respond, Moses shot him once in the chest and once in the head. Id. Several days after the second murder, while incarcerated on other charges, Moses contacted two people in an attempt to conceal his murder weapon, which was nonetheless later seized by police. Id.

Following Moses' capital sentencing hearing, the jury recommended, and the trial court imposed, two death sentences. The state supreme court affirmed Moses' conviction, and the United States Supreme Court denied his petition for writ of certiorari. See State v. Moses , 350 N.C. 741, 517 S.E.2d 853 (1999)

, cert. denied, 528 U.S. 1124, 120 S.Ct. 951, 145 L.Ed.2d 826 (2000). Moses filed a "Motion for Appropriate Relief" (MAR) in the trial court, alleging that he had been deprived of his Sixth Amendment right to effective assistance of trial and appellate counsel. The North Carolina courts rejected his claims. State v. Moses , 356 N.C. 442, 573 S.E.2d 160 (2002)

.

The procedural trail then becomes lengthy indeed. On November 3, 2003, Moses filed a federal habeas petition under 28 U.S.C. § 2254

in the United States District Court for the Middle District of North Carolina. He argued that his counsel provided constitutionally deficient representation during the guilt and penalty phases of trial. J.A. 370–411. Moses also asserted that the inadequate performance of his post-conviction counsel excused any procedural default of his ineffective-assistance-of-trial-counsel claims. Id.

The case was assigned to a magistrate judge who recommended that Moses' petition be denied. J.A. 565–600. Specifically, the recommendation noted that Moses "attempt[ed] to drastically broaden," J.A. 591, the allegations contained in his MAR by "mov[ing] well beyond a claim of failure to present evidence to one of a failure to investigate." J.A. 593. The magistrate judge concluded that the newly-raised matters were both unexhausted and procedurally barred. Hoping to remedy those infirmities before the district court issued its order, Moses filed a second MAR in the state trial court. His motion was ultimately rejected. J.A. 622–23. The district court adopted the magistrate's recommendation on October 18, 2005, and this court affirmed. The Supreme Court denied certiorari. Moses v. Branker, No. 06–8, 2007 WL 3083548 (4th Cir. Oct. 23, 2007)

, cert. denied, 554 U.S. 924, 128 S.Ct. 2970, 171 L.Ed.2d 896 (2008).

Moses filed yet a third MAR with the state trial court on October 1, 2009. He argued that the state violated the Due Process Clause of the Fourteenth Amendment when it failed to disclose an immunity agreement with a witness who testified against Moses at trial. Moses also claimed that the state knowingly refused to correct false testimony. After conducting an evidentiary hearing, the court once again denied his motion. Moses unsuccessfully petitioned the North Carolina Supreme Court for review. State v. Moses, 365 N.C. 93, 706 S.E.2d 246 (2011)

.

On September 23, 2011, Moses filed a motion under Rule 60(b)

for relief from the district court's October 2005 order dismissing his federal habeas petition. He raised the same allegations presented in his third MAR. The district court determined that the motion should be treated as a successive habeas petition, and accordingly transferred the matter to this court for pre-filing authorization. We denied authorization for the successive habeas litigation. In re Moses, No. 13–1 (4th Cir. Feb. 7, 2013).

Meanwhile, on March 20, 2012, the Supreme Court held in Martinez that a procedural default under state law will not bar a federal habeas court from hearing an ineffective-assistance-of-trial-counsel (IATC) claim if a prisoner's attorney ineffectively failed to raise the IATC claim in the initial state collateral proceedings. See 132 S.Ct. at 1315–20

. About fourteen months later, the Court decided Trevino, which extended the Martinez exception to the customary rules of procedural default to cases in which state procedure did not require a petitioner to raise an ineffectiveness claim initially on collateral review but nonetheless made it "highly unlikely" that a criminal defendant would have a meaningful opportunity to raise that claim on direct appeal. See 133 S.Ct. at 1921.

Moses filed a second motion for relief from judgment pursuant to Rule 60(b) in the district court on August 19, 2014—nearly fifteen months after the Supreme Court handed down Trevino. Moses argued below, and maintains on appeal, that the change in decisional law worked by Martinez and Trevino represents the kind of "extraordinary circumstance" justifying relief from judgment under 60(b)(6). J.A. 624–32. He asserts that because the "allegations regarding [his] trial counsel's failure to adequately investigate and present mitigating evidence ... fall within the Martinez exception," his ineffective-assistance-of-trial-counsel claims are not procedurally forfeited, and the district court's decision dismissing his federal habeas petition should be vacated. Id. at 629. The court below held that Moses' motion was not only untimely under Rule 60(c)

, but that a change in habeas decisional law, without more, is an insufficient basis for 60(b)(6) relief. Id. at 706–21. We granted a certificate of appealability, and this appeal ensued.

II.

We first address whether Moses' Rule 60(b)(6)

motion for relief from judgment on the basis of Martinez and Trevino satisfies the timeliness requirement under Rule 60(c). We think the district court acted well within its discretion in finding the motion untimely. J.A. 722–25. Rule 60(c)(1) requires that 60(b) motions "be made within a reasonable time," Fed.R.Civ.P. 60(c)(1), and the movant bears the burden of showing timeliness. Werner v. Carbo, 731 F.2d 204, 206–07 & n. 1 (4th Cir.1984). Moses' 60(b) motion is predicated on a change in habeas procedural law established in Martinez, 132 S.Ct. 1309, and later clarified in Trevino, 133 S.Ct. 1911. The Supreme Court decided Martinez on March 20, 2012, and Trevino on May 28, 2013.

Nonetheless, appellant waited until August 19, 2014 to file the 60(b) motion at issue here. J.A. 624–34. This was nearly two-and-a-half years after Martinez and fifteen months after Trevino. Such a delay would be inordinate under any circumstances. This delay is especially inexplicable in view of the fact that Moses had presented his claim asserting ineffective assistance of trial counsel in federal court and was procedurally barred for having failed to raise it in state post-conviction proceedings. In other words, Moses was on high alert as to the relevance of Martinez to his case given that he had earlier pressed in federal habeas proceedings the exact argument eventually adopted in Martinez: that ineffectiveness of post-conviction counsel constitutes cause for procedural default. Waiting well over two years after Martinez and a year after Trevino to bring that argument before the district court in his 60(b) motion understandably struck that court as excessively delayed under Rule 60(c)

.

What is more, Moses had filed an earlier 60(b) motion on September 23, 2011, which was pending when Martinez came down. Def.'s Mot., ECF No. 58. That 60(b) motion raised two issues, that the state allowed false testimony and concealed an alleged immunity agreement with a government witness, neither of which related to procedural default of his ineffectiveness claim. Id. Yet Moses never tried to amend that pending motion to allege his trial counsel's ineffective assistance in light of the change in procedural default rules.

We can hardly fault the district court for an abuse of discretion in ruling that Moses' delay was well beyond the bounds of reasonableness set forth in Rule 60(c)

. Courts have ruled Martinez -based 60(b) motions untimely in cases involving shorter delays...