Errol Moses v. Carlton Joyner

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-2

ERROL DUKE MOSES,

Petitioner − Appellant,

CARLTON JOYNER, Warden, Central Prison,

Respondent − Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:03-cv-00910-TDS-LPA)

Argued: January 26, 2016 Decided: March 8, 2016

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.

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.
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, 132 S.

Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013),

did not constitute the kind of “extraordinary circumstance”

needed to reopen his case. For the reasons that follow, we

affirm.

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.

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.

When Dunkley failed to respond, Moses shot him once in the chest

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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 (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.

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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 (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).

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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

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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

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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).

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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 than that present here. E.g., Taylor v. Wetzel,

No. 4:CV-04-553, 2014 WL 5242076, at *8 (M.D. Pa. Oct. 15, 2014)

(filing one year and a day after Martinez untimely); Henness v.

Bagley, No. 2:01-cv-043, 2013 WL 4017643, at *11 (S.D. Ohio Aug.

6, 2013) (filing one year after Martinez untimely). In fact,

Moses refers us to no case where a delay as long as his was

deemed timely under Rule 60(c).

Appellant claims, however, that the starting point for the

timeliness inquiry should not be Martinez v. Ryan, but rather

Fowler v. Joyner, a Fourth Circuit case decided over two years

later. 753 F.3d 446 (4th Cir. 2014). In Fowler, this court

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addressed how North Carolina’s post-conviction procedural scheme

fit within the new Martinez-Trevino framework. Id. at 462-63.

But Moses was in no way required to await the Fowler decision

before filing a new 60(b) motion or amending his existing 60(b)

motion to assert his Martinez-based claim. The barrier facing

appellant was always the procedural default of his ineffective-

assistance-of-counsel claim, a barrier that Martinez

specifically lifted. 132 S. Ct. at 1320. The operative date for

the timeliness inquiry is therefore Martinez and not Fowler.

To conclude that the operative date was anything other than

Martinez would permit those filing 60(b) motions to wait

indefinitely, shifting the starting point for determining

timeliness forward with every case that in some way related to

an earlier on-point Supreme Court decision. Fowler itself

frowned on any such tactic. In fact, Fowler discussed a Fourth

Circuit decision that further clarified Martinez, Juniper v.

Davis. Fowler, 753 F.3d at 461-62 (citing 737 F.3d 288 (4th Cir.

2013)). Our court treated Martinez, and not the inevitable later

elaborative decision by a lower court, as the operative change

in habeas law. See id. at 460-62. That approach is consistent

with the particular emphasis that AEDPA and other statutes

governing relief from final judgments place on changes in law by

the Supreme Court. See, e.g., 28 U.S.C. § 2254(e)(2)(A)(i)

(referring to “a new rule of constitutional law, made

9
retroactive to cases on collateral review by the Supreme

Court”); 28 U.S.C. § 2255(h)(2) (same).

In reaching our conclusion on timeliness, we remain

sensitive to the fact that standards such as “reasonable time,”

“excusable neglect,” and “good cause shown” reflect the

considerable latitude of judgment our system reposes in trial

courts. Were we to reverse the district court’s ruling here as

an abuse of discretion and accept as timely a motion filed two-

and-a-half years after the appellant knew or should have known

the basis for his 60(b) claim, the “reasonable time” limitation

in Rule 60(c)(1) would quickly lose all meaning. Movants would

be free to re-litigate matters years after their judgments had

become final and years after every subsequent change in law that

even arguably brought relief. We decline to so erode the

“principle of finality . . . essential to the operation of our

criminal justice system” and the respect we owe to state court

judgments. Teague v. Lane, 489 U.S. 288, 309 (1989).

III.

Appellant’s problem with untimeliness is but the first of

many hurdles. The question remains whether he met the standard

for relief under Rule 60(b)(6). Rule 60(b) establishes grounds

for relief from a final judgment “under a limited set of

circumstances including fraud, mistake, and newly discovered

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evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). In

addition to the specific categories for relief in 60(b)(1)-(5),

60(b)(6) offers a catch-all provision that allows a court to

“relieve a party or its legal representative from a final

judgment, order, or proceeding” for “any other reason that

justifies relief.” Fed. R. Civ. P. 60(b)(6).

Finding himself ineligible for any of the specific grounds

for relief in 60(b)(1)-(5), Moses rests his present motion on

the open-ended language of 60(b)(6). That provision, however,

has been firmly reined in by the Supreme Court. In Gonzalez v.

Crosby, the Court addressed a situation similar to the present

case: a 60(b) motion seeking to reopen a district court judgment

dismissing a federal habeas petition as time-barred by AEDPA’s

statute of limitations. 545 U.S. 524. The movant in Gonzalez

relied on a favorable change in habeas decisional law handed

down by the Supreme Court after the district court decision. Id.

at 527 (citing Artuz v. Bennett, 531 U.S. 4 (2000)). Despite the

change in procedural law, Gonzalez made clear that 60(b)(6) is

not ordinarily available to those challenging previously denied

habeas relief. To the contrary, a showing of “extraordinary

circumstances” is required for a successful 60(b)(6) motion. 545

U.S. at 535; accord Liljeberg v. Health Servs. Acquisition

Corp., 486 U.S. 847, 864 (1988) (quoting Ackerman v. United

States, 340 U.S. 193, 199 (1950)).

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As the word “extraordinary” suggests, “not every

interpretation of the federal statutes setting forth the

requirements for habeas provides cause for reopening cases long

since final.” Id. at 536. Underlying the Court’s concern was the

reality that changes in the habeas statutes and in the judicial

interpretation of habeas procedural rules are relatively common.

See id. at 536-37. Each new twist and turn runs the risk of

producing a tidal wave of 60(b) motions, just as Martinez has

done throughout the lower courts. Further, the potential for

60(b) motions to “impermissibly circumvent the requirement[s]”

for securing relief under AEDPA was evident. Id. at 532. The

prospect of having the open-ended language of Rule 60(b)(6)

supplant the specific habeas constraints in AEDPA, see 28 U.S.C.

§ 2254(b)-(i), led the Gonzalez Court to this conclusion: The

“extraordinary circumstances” required for relief under 60(b)(6)

would “rarely occur in the habeas context.” 545 U.S. at 535.

In light of Gonzalez’s cabined conception of Rule 60(b)(6)

in the habeas context, Moses’ motion for relief invoking the

change in procedural default rules occasioned by Martinez falls

well short of “extraordinary.” In fact, Moses’ ground for

reopening judgment under 60(b)(6) is not extraordinary for the

same reasons Gonzalez’s was not extraordinary. Moses argues that

“[t]he intervening change in law represented by

Martinez . . . directly overruled the decision [of the district

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court] for which reconsideration has been sought,” thus

warranting relief from judgment under 60(b). J.A. 631. But that

is precisely the line of reasoning the Supreme Court rejected in

Gonzalez. 545 U.S. at 536 (“Petitioner’s only ground for

reopening the judgment denying his first federal habeas petition

is that our decision in Artuz showed the error of the District

Court’s statute-of-limitations ruling.”). If the change in

habeas decisional law at issue in Gonzalez cannot pass as an

extraordinary circumstance, then the change here should not fare

any better.

Moreover, Gonzalez was hardly a groundbreaking result. We

too have held that “a change in decisional law subsequent to a

final judgment provides no basis for relief under Rule

60(b)(6).” Dowell v. State Farm Fire & Cas. Auto. Ins. Co., 993

F.2d 46, 48 (4th Cir. 1993) (citing Hall v. Warden, Md.

Penitentiary, 364 F.2d 495, 496 (4th Cir. 1966) (en banc)). In

Hall v. Warden, for instance, we denied the state’s 60(b) motion

after a Supreme Court ruling undermined our prior judgment

granting post-conviction relief, noting that the matter “should

not be reopened merely upon a showing of inconsistency with [the

Supreme Court] decision.” 364 F.2d at 496.

Indeed, the law on this issue reflects an admirable

consistency, as the decisions of other circuits attest. See

Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014) (declaring

13
that “the change in the decisional law effected by the Martinez

rule is not an ‘extraordinary circumstance’ sufficient to invoke

Rule 60(b)(6)”); Nash v. Hepp, 740 F.3d 1075, 1078-79 (7th Cir.

2014) (affirming the denial of petitioner’s Rule 60(b)(6) motion

since he presented “the ‘mundane’ and ‘hardly extraordinary’

situation in which the district court applied the governing rule

of procedural default at the time of its decision and the

caselaw changed after judgment became final”); McGuire v.

Warden, Chillicothe Corr. Inst., 738 F.3d 741, 750-51 (6th Cir.

2013) (holding that the change in procedural default rules

worked by Trevino and Martinez is not an exceptional

circumstance justifying Rule 60(b)(6) relief because those cases

did not alter the constitutional rights of criminal defendants);

Adams v. Thaler, 679 F.3d 312, 319 (5th Cir. 2012) (noting that

a “change in decisional law after entry of judgment does not

constitute exceptional circumstances and is not alone grounds

for relief from a final judgment under Rule 60(b)(6)” (quoting

Bailey v. Ryan Stevedoring Co., 894 F.2d 157, 160 (5th Cir.

1990))). Moreover, even those circuit cases referenced by Moses

are peppered with cautionary language, underscoring that “the

jurisprudential change rendered by Martinez, without more, does

not entitle a habeas petitioner to Rule 60(b)(6) relief.” Cox v.

Horn, 757 F.3d 113, 124 (3d Cir. 2014). We have no authority to

depart from the rulings of the Supreme Court or our own, and we

14
see no reason to depart from the gravamen of national circuit

law.

IV.

The requirements of timeliness and of “extraordinary

circumstances” are not the only obstacles impeding Moses from

securing relief under Rule 60(b)(6). Martinez emphasized that a

petitioner’s ineffective-assistance-of-trial-counsel claim must

be a colorable one before post-conviction counsel can be deemed

ineffective for failing to raise it. See 132 S. Ct. at 1318

(requiring that the underlying ineffectiveness claim be

“substantial”). Citing that language, the government urges us to

make the additional holdings that Moses’ counsel was not

ineffective at trial or sentencing, that there was no

ineffective assistance of post-conviction counsel for failing to

raise the IATC claim, and that in all events there was no

prejudice to Moses given the strength of the state’s case. We

decline, however, to reach those issues other than to note that

this case has long ago reached the point of churning procedures

without prospect of practical effect. The road to relief

stretches some distance, and Moses has faltered at the initial

steps. For the foregoing reasons, the judgment of the district

court is

AFFIRMED.