USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 1 of 9
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6287
DAVID EDWARD CAVALIERI,
Petitioner - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
No. 20-7134
DAVID EDWARD CAVALIERI,
Petitioner - Appellant,
v.
COMMONWEALTH OF VIRGINIA,
Respondent - Appellee.
Appeals from the United States District Court for the Eastern District of Virginia, at
Alexandria. Leonie M. Brinkema, District Judge. (1:18-cv-00356-LMB-JFA)
Submitted: December 30, 2021 Decided: April 19, 2022
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 2 of 9
Before WYNN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.
No. 20-6287, dismissed; No. 20-7134, reversed and remanded by unpublished per curiam
opinion.
David Edward Cavalieri, Appellant Pro Se. Victoria Lee Johnson, Assistant Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 3 of 9
PER CURIAM:
David Edward Cavalieri, a state prisoner, filed in the district court a pro se 28 U.S.C.
§ 2254 petition alleging numerous claims. The petition included a detailed table of
contents, a table of authorities, headings delineating each claim, and numbered pages.
However, for reasons that remain unknown, more than half of the pages were missing from
the version of the petition that made it into the district court record. Thus, although
Cavalieri’s petition ends on page “93,” the document in the record is only 42 pages long. 1
The Government filed a motion to dismiss, addressing only the claims that were
included in the incomplete version of the petition. In opposition to the Government’s
motion, Cavalieri—citing primarily to the missing pages—noted that the Government had
failed to respond to several of his claims and arguments. The district court granted the
Government’s motion and dismissed Cavalieri’s § 2254 petition. The court described the
petition as “confusing” and “improperly numbered” and noted that the table of contents
listed claims on pages that did not exist. Stating that the court was not a mind reader, the
court declared that it would only be addressing the claims that could be deciphered from
the petition on file. The court then dismissed each identified claim as either procedurally
defaulted, meritless, or not cognizable on habeas review. Cavalieri filed a timely notice of
appeal (Case No. 20-6287).
1
Cavalieri’s petition also included an attachment, labeled “Exhibit G,” outlining his
individual claims of ineffective assistance of trial counsel. Each page of the attachment is
numbered, and, again, many of the pages are missing.
3
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 4 of 9
Shortly after filing his notice of appeal, Cavalieri filed a motion for reconsideration.
Because the motion “challenge[d] [a] defect in the integrity of the federal habeas
proceedings,” it “is a true Rule 60(b) motion.” United States v. McRae, 793 F.3d 392, 397
(4th Cir. 2015). Rule 60(b) “authorizes a district court to grant relief from a final judgment
for five enumerated reasons or for ‘any other reason that justifies relief.’” Aikens v. Ingram,
652 F.3d 496, 500 (4th Cir. 2011) (en banc) (quoting Fed. R. Civ. P. 60(b)(6)). Here,
Cavalieri moved for relief under Rule 60(b)(1) (“mistake, inadvertence, surprise, or
excusable neglect”), 60(b)(3) (“fraud . . ., misrepresentation, or misconduct by an opposing
party”), and 60(b)(6) (“any other reason that justifies relief”).
In his Rule 60(b) motion, Cavalieri contended that the district court erred by not
addressing all the arguments in his § 2254 petition. Cavalieri observed that some of the
pages appeared to have been misplaced by the court because he had mailed in a complete
petition. 2 Cavalieri attached to his motion a complete copy of his § 2254 petition, which
included the pages that were missing from the original filing. A comparison of the two
documents clearly shows that they are copies of the same petition—the only substantive
2
Cavalieri also contended that the district court misunderstood the first claim of his
§ 2254 petition and thus never properly adjudicated that claim on the merits. The district
court addressed this allegation separately, denying that it had misunderstood the claim.
Because some of the pages missing from Cavalieri’s original petition pertained to his first
claim, we treat this allegation as a subset of the larger issue regarding whether the district
court should have reconsidered Cavalieri’s § 2254 petition upon learning of the filing error.
4
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 5 of 9
difference being the addition of the missing pages. 3 The district court denied Cavalieri’s
Rule 60(b) motion, stating that Cavalieri sought to cast blame for the filing error on anyone
but himself and that the petition the court considered was the petition that the clerk’s office
received and scanned. Cavalieri timely appealed the district court’s denial (Case No.
20-7134), and we consolidated the two appeals.
Following an initial review, we granted Cavalieri’s motion for a certificate of
appealability in Case No. 20-7134 on the following issue: “Whether the district court
abused its discretion in denying Cavalieri’s Rule 60(b) motion when it refused to reconsider
Cavalieri’s § 2254 claims after receiving Cavalieri’s complete § 2254 petition.” 4 In
accordance with our order, the Government filed an informal response brief, and Cavalieri
filed an informal reply brief.
We now review for abuse of discretion the district court’s denial of Cavalieri’s Rule
60(b) motion. Aikens, 652 F.3d at 501. “In order to obtain relief from a judgment under
Rule 60(b), a moving party must show that his motion is timely, that he has a meritorious
defense to the action, and that the opposing party would not be unfairly prejudiced by
having the judgment set aside.” Nat’l Credit Union Admin. Bd. v. Gray, 1 F.3d 262, 264
(4th Cir. 1993) (cleaned up). Once the movant has met these threshold requirements, “he
3
As Cavalieri notes in his appellate brief, he annotated the copy of the complete
petition that he attached to his Rule 60(b) motion. However, these annotations are confined
to the margins and are not substantive.
4
We deferred ruling on Cavalieri’s appeal of the district court’s order denying relief
on his § 2254 petition in Case No. 20-6287.
5
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 6 of 9
must proceed to satisfy one or more of [Rule 60(b)]’s six grounds for relief from judgment.”
Werner v. Carbo, 731 F.2d 204, 207 (4th Cir. 1984).
As an initial matter, we conclude that Cavalieri has met the threshold requirements
for relief. Cavalieri filed his Rule 60(b) motion less than two months after the district court
entered its final judgment, which was plainly within a reasonable time under the
circumstances. See Fed. R. Civ. P. 60(c)(1) (“A motion under Rule 60(b) must be made
within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the
entry of the judgment or order or the date of the proceeding.”); see also Werner, 731 F.2d
at 207 (stating that a Rule 60(b) motion filed less than 11 weeks after the final judgment
was “clearly within a reasonable time”). Cavalieri also made sufficiently meritorious
claims in his complete § 2254 petition to justify the district court’s full consideration. 5 And
the Government has not established that it would suffer any prejudice “beyond that suffered
by any party which loses a quick victory.” Augusta Fiberglass Coatings, Inc. v. Fodor
Contracting Corp., 843 F.2d 808, 812 (4th Cir. 1988); see also Werner, 731 F.2d at 207
(stating that “the type of prejudice contemplated by [Rule 60(b)]” does not include the
normal inconveniences parties suffer when “any judgment is vacated”).
5
The Government relies on United States v. Stevens, 734 F. App’x 196 (4th Cir.
2018) (No. 17-6881) for the proposition that the complete § 2254 petition Cavalieri
appended to his Rule 60(b) motion cannot be considered because it is successive and
unauthorized. This reliance is misplaced. It is clear from the record that the complete
§ 2254 petition is not a new document but, rather, a copy of the original petition with the
missing pages included.
6
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 7 of 9
We turn next to the specific grounds for relief enumerated in Rule 60(b). We have
recognized that these “grounds for relief often overlap, and it is difficult if not inappropriate
in many cases to specify or restrict the claim for relief to a particular itemized ground.”
Werner, 731 F.2d at 207. Here, Rule 60(b)(1) and 60(b)(6) are both potentially applicable. 6
Under the circumstances, however, we conclude that proceeding under Rule 60(b)(6) is
more appropriate. See Compton v. Alton S.S. Co., Inc., 608 F.2d 96, 106–07 (4th Cir. 1979)
(declining to resolve whether district court’s error constituted “mistake” under Rule
60(b)(1) because relief was available under Rule 60(b)(6)).
“Rule 60(b)(6) provides the court with a grand reservoir of equitable power to do
justice in a particular case.” Reid v. Angelone, 369 F.3d 363, 374 (4th Cir. 2004) (internal
quotation marks omitted), abrogated in part by McRae, 793 F.3d at 400 & n.7.
“Nevertheless, . . . a court may not grant relief pursuant to Rule 60(b)(6) absent
extraordinary circumstances.” Id. We conclude that extraordinary circumstances exist in
this case. Although we don’t know what happened to the missing pages, 7 Cavalieri
6
We reject Cavalieri’s argument that he is entitled to relief under Rule 60(b)(3)
because he has not shown by clear and convincing evidence that the Government’s actions
constituted fraud, misrepresentation, or misconduct or that they impacted his ability to fully
present his case. See Schultz v. Butcher, 24 F.3d 626, 630 (4th Cir. 1994).
7
It seems equally plausible that the missing pages were lost by Cavalieri himself,
the prison officials responsible for mailing, or the district court clerk’s office. The
Government argues that the district court’s “factual finding”—that the petition the district
court considered was the one received by the clerk’s office—forecloses any argument that
the court lost the missing pages. However, the district court’s only support for this
statement is the PACER docket entry containing the incomplete petition, which is not
evidence that the district court clerk’s office scanned each page of the petition into the
record. Accordingly, to the extent the district court’s statement can be considered a “factual
7
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 8 of 9
exercised due diligence in attempting to present all of his claims to the district court. See
Gonzalez v. Crosby, 545 U.S. 524, 537–38 (2005) (treating a litigant’s diligence or lack
thereof as factor in deciding a Rule 60(b) motion in a habeas case); Reid, 369 F.3d at 374
(same).
Even though he was pro se, Cavalieri included in his petition a detailed table of
contents, a table of authorities, and numbered pages. Moreover, except for the missing
pages, Cavalieri presented his arguments in a coherent manner, with individual headings
and factual support for each claim. When the Government failed to respond to some of his
claims in its motion to dismiss, Cavalieri highlighted the omissions in his response—citing
precise page numbers of claims to which the Government had not responded (which turned
out to be claims from the missing pages). When the district court explained in its final
order that the petition appeared to be missing pages, Cavalieri promptly filed both a notice
of appeal and a Rule 60(b) motion with a copy of the complete petition. And, as noted
above, when reviewing the two documents side-by-side, it is clear that the complete version
of the § 2254 petition is a copy of the same document (with the missing pages included)
and not a new petition that Cavalieri drafted in an attempt to present more claims.
Equitable considerations also favor allowing Cavalieri to have each of his habeas
claims fully considered on the merits “given the stringent requirements a prisoner must
satisfy to file a successive habeas application.” Reid, 369 F.3d at 374. The complete
finding,” it is clearly erroneous because it is not supported by any evidence in the record.
See Consol. Coal Co. v. Loc. 1643, United Mine Workers of Am., 48 F.3d 125, 128 (4th
Cir. 1995).
8
USCA4 Appeal: 20-7134 Doc: 20 Filed: 04/19/2022 Pg: 9 of 9
version of Cavalieri’s § 2254 petition not only presented several claims that were not
included in the original version, but it also presented additional arguments in support of
claims that were included in the original version. And it is unlikely that Cavalieri will have
another opportunity to have those claims heard.
Considering the totality of the circumstances, this is one of the rare cases that “cries
out for the exercise of that equitable power to do justice,” Gray, 1 F.3d at 266 (cleaned up).
We therefore conclude that the district court abused its discretion in denying Rule 60(b)
relief. Accordingly, in Case No. 20-7134, we reverse the district court’s order denying
Cavalieri’s Rule 60(b) motion and remand with instructions to grant the motion and permit
Cavalieri to refile his § 2254 petition with the missing pages.
Granting Cavalieri’s Rule 60(b) motion will necessarily require the district court to
vacate its order dismissing Cavalieri’s incomplete § 2254 petition. Accordingly, in Case
No. 20-6287, we dismiss Cavalieri’s appeal as interlocutory because, following remand,
the appeal will no longer be based on a final order. See 28 U.S.C. § 1291. We dismiss as
moot the motion for a certificate of appealability and motion for a transcript at the
Government’s expense that Cavalieri filed in Case No. 20-6287.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
NO. 20-6287, DISMISSED,
NO. 20-7134, REVERSED AND REMANDED
9