MONTANEZ v. KAUFFMAN

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JOSE MONTANEZ, : CIVIL ACTION

Petitioner :

v □

KEVIN KAUFFMAN et al., :

Respondent : No. 19-2970

MEMORANDUM

PRATTER, J. womml- , 2023

On September 22, 2020, this Court dismissed Jose Montanez’s petition for writ of habeas

corpus under 28 U.S.C. § 2254, concluding that the petition was time barred. Invoking Federal

Rules of Civil Procedure 60(b)(2) and 60(b)(6), Mr. Montanez, proceeding pro se, now secks relief

from that judgment.

Mr. Montanez avers that he is entitled to relief under Rule 60(b)(6) because the Court

incorrectly failed to calculate the statutory tolling that ought to have occurred upon the filing of

his second Post Conviction Relief Act petition, that equitable tolling is warranted because of

alleged constitutional errors that occurred at irial, and that relief of judgment under Rule 60(b)(2)

is necessary because he has newly discovered evidence that by due diligence could not have been

discovered in time to move for a new trial under Rule 59(b). For the reasons set forth below, the

Court will deny the motion and concludes that no certificate of appealability shall issue.

BACKGROUND

Jose Montanez was convicted in the Philadelphia County Court of Common Pleas of

first-degree murder, 18 Pa. Cons. Stat § 2502(a); robbery, 18 Pa. Cons. Stat § 3701(a)(1)(i);

burglary, 18 Pa. Cons. Stat § 3502(a); and possession of an instrument of crime with intent, 18 Pa.

Cons. Stat § 907(a). On February 6, 2013, the trial court sentenced Mr. Montanez to a mandatory

term of life imprisonment for the first-degree murder charge and concurrent sentences for the

remaining charges.

Mr. Montanez did not file a direct appeal, and his judgment of sentence became final 30

days later on March 8, 2013. His later efforts to challenge his conviction in state court were

unavailing. He timely filed his first pro se petition under the Post Conviction Relief Act (““PCRA”),

42 Pa. Cons. Stat. § 9541, on February 6, 2014. The PCRA court conducted an evidentiary hearing,

and on March 3, 2017, the PCRA court dismissed the first PCRA petition. Mr. Montanez filed a

notice of appeal to the Superior Court. The Superior Court affirmed the PCRA court’s dismissal

of Mr. Montanez’s first PCRA petition on October 10, 2018. Connmonwealth v. Montanez, No.

1186 EDA 2017, 2018 WL 4907576, at *4 (Pa. Super. Ct. Oct. 10, 2018). The Pennsylvania

Supreme Court denied Mr. Montanez’s petition for allowance of appeal on April 30, 2019.

Commonwealth v. Montanez, 207 A.3d 904 (Table) (Pa. 2019).

Mr. Montanez filed a second PCRA petition on June 24, 2019, which was neatly five years

past the deadline to file such a petition. On February 6, 2020, the PCRA court filed a notice of its

intent to dismiss the pending second PCRA petition under Pennsylvania Rule of Criminal

Procedure 907, and on July 10, 2020, it dismissed the second PCRA petition as untimely.

Mr. Montanez submitted his federal petition for writ of habeas corpus under 28 U.S.C.

§ 2254 on June 27, 2019. This Court referred Mr. Montanez’s petition to a magistrate judge, who

issued a Report and Recommendation and recommended that the petition be dismissed with

prejudice because Mr. Montanez failed to file his petition within the strict one-year limitation

period set forth in 28 U.S.C. § 2244(d), and he had shown no entitlement to statutory or equitable

tolling, This Court approved and adopted the Report and Recommendation on September 22, 2020.

Mr, Montanez then sought a certificate of appealability from the Third Circuit Court of Appeals.

The Court of Appeals declined to issue a certificate of appealability on March 4, 2021. Montanez

v, Superintendent Huntingdon SCI et al., Appeal No. 20-3090 (3d Cir.).

On January 12, 2023, Mr. Montanez filed the instant motion under Rule 60(b)(2) and (6),

alleging that his petition was timely and that he has newly discovered evidence that could not have

been discovered by due diligence earlier, thus warranting the Court’s reconsideration of his federal

habeas petition’s dismissal,

LEGAL STANDARD

Federal Rule of Civil Procedure 60(b) provides that “the court may relieve a party... from

a final judgment, order, or proceeding” in certain circumstances, Fed, R. Civ. P. 60(b). “The

general purpose of Rule 60. , . is to strike a proper balance between the conflicting principles that

litigation must be brought to an end and that justice must be done.” Boughner v. Sec’y of Health,

Educ., & Welfare, 572 F.2d 976, 977 (3d Cir. 1978),

A motion under Rule 60(b) is “addressed to the sound discretion of the trial court guided

by accepted legal principles applied in light of all the relevant circumstances.” Ross v, Meagan,

638 F.2d 646, 648 (3d Cir. 1981), overruled on other grounds by Neitzke v. Williams, 490 U.S,

319, 328 (1989); accord Pierce Assocs., Inc. vy. Nemours Found., 865 F.2d 530, 548 (3d Cir. 1988),

However, that discretion is not unlimited—“Rule 60(b) does not confer upon the district courts a

standardless residual of discretionary power to set aside judgments,” Moolenaar v. Gov't of □□□

822 F.2d 1342, 1346 Gd Cir. 1987) Gntemal quotation marks omitted), A motion seeking relief

pursuant to Rule 60(b)(2) must be filed “no more than a year after the entry of the judgment or

order or the date of the proceeding.” Fed. R, Civ. P. 60(c)(1). A motion seeking relief pursuant to

Rule 60(b}(6), in contrast, must only be filed “within a reasonable time.” Jd. “What constitutes

‘reasonable time’ depends upon the facts of each case, taking into consideration the imterest in

finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied

upon, and [the consideration of] prejudice [if any] to other parties.” Devon v. Vaughn, No.

94-cv-2534, 1995 WL 295431, at *2 (E.D. Pa. Apr. 27, 1995) (quoting Kagan v. Caterpillar

Tractor, 795 F.2d 601, 610 (7th Cir. 1986)). Generally, Rule 60(b)(6) motions are untimely if filed

more than one year after final judgment, absent “extraordinary circumstances” excusing the

movant’s delay, See Moolenaar, 822 F.2d at 1348 (finding that Rule 60(b)(6) motion brought

nearly two years after the district court’s initial judgment was not made within a reasonable time,

although the motion was brought only six weeks after the district court’s yadgment on remand,

because “the reason for the attack upon that judgment was available for attack upon the original

judgment”).

Courts must also consider the restrictions of the Anti-Terrorism and Effective Death

Penalty Act (““AEDPA”) of 1996, 28 U.S.C. § 2244, “on the filing of second or successive habeas

petitions], which] make it implausible to believe that Congress wanted Rule 60(b) to operate under

full throttle in the habeas context.” Pridgen v. Shannon, 380 F.3d 721, 727 Gd Cir. 2004) (quoting

Rodwell v. Pepe, 324 F.3d 66, 67 (1st Cir. 2003). “Rule 60(b) has an unquestionably valid role to

play in habeas cases,” but it does not allow petitioners to file successive petitions. Gonzalez v,

Crosby, 545 U.S, 524, 534 (2005). Motions under Rule 60 that present a new claim for relief and

motions that attack “the federal court’s previous resolution of a claim on the merits” are considered

successive petitions, /d. at 531-32; accord Pridgen, 380 F.3d at 727, A petitioner may, however,

properly challenge a “defect in the integrity of the federal habeas proceedings” under Rule 60.

Gonzalez, 545 US. at 532; see also Pridgen, 380 F.3d at 727.

DISCUSSION

Mr. Montanez seeks relief under Federal Rules of Civil Procedure 60(b)(2) and (6),

claiming that the Court erred in failing to consider the merits of his claims and that he has newly

discovered evidence which could not have been discovered in time to move for a new trial, The

alleged newly discovered evidence includes trial transcripts withheld by PCRA counsel until Mr.

Montanez’s federal habeas petition was already time-barred. As a threshold matter, the Court first

considers whether his motion is properly brought under Rule 60(b), or whether it is actually a

second or successive § 2254 petition.

I. Mr, Montanez’s Motion Is a “True” Rule 60(b) Motion as to His Arguments

Regarding to the Court’s Alleged Procedural Errors Regarding Tolling

“Mr. Montanez argues that the magistrate judge erred procedurally in recommending the

dismissal of his June 27, 2019 federai habeas petition as time-barred. He cites to Arfuz v. Bennett,

531 U.S. 4 (2000), for the proposition that an application for state postconviction relief may be

property filed although the state court has dismissed it as time-barred. Mr, Montanez then asserts

that he is entitled to equitable tolling because, as he alleged in his § 2254 petition, his trial counsel

failed to file a direct appeal on Mr. Montanez’s behalf. Mr. Montanez’s motion qualifies as a

proper Rule 60(b) motion because, by challenging this Court’s decision not to apply statutory or

equitable tolling to his petition and the resulting decision to dismiss the petition as time-barred, he

challenges a “defect in the integrity of the federal habeas proceedings” under Rule 60. Gonzalez,

545 U.S. at 532, 535-36 (“Because petitioner’s Rule 60(b) motion challenges only the District

Court’s previous ruling on the AEDPA statute of limitations, it is not the equivalent of a successive

habeas petition.”). So, the Court may exercise jurisdiction over Mr. Montanez’s motion and

considers his arguments in turn below.

Il, Mr. Mentanez’s Claims Fail Under Rule 60(5)(6)

Mr. Montanez seeks relief under Rule 60(b)(6) based on the Court’s failure to consider the

merits of the claims in his federal habeas petition, its declination to apply statutory or equitable

tolling to his petition, and its dismissal of his federal habeas petition as time-barred.

Under the catch-all provision of Rule 60(b), a party may move for relief from a final

judgment for “any ... reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). But Rule 60(b)(6) relief

is justified only by “extraordinary, and special circumstances.” Pridgen, 380 F.3d at 728. Those

circumstances are rare in the context of § 2254 petitions. Gonzalez, 545 U.S. at 535. Mr.

Montanez’s disagreement with this Court’s ruling that his petition was untimely is not an

“extraordinary or special” circumstance. Pridgen, 380 F.3d at 728 (‘No extraordinary

circumstances are presented here that would warrant the District Court revisiting its prior decision

that the habeas petition was untimely filed.”), accord Cox y, Horn, 757 F.3d 113, 115 Gd Cir.

2014). Here, then, the Court denies relief under Rule 60(b}(6).

A. Mr. Montanez Is Not Entitled to Statutory Tolling

Construing Mr, Montanez’s pro se motion liberally, the Court identifies the apparent

argument that Mr. Montanez’s second PCRA petition was “properly filed” notwithstanding its

later rejection by the PCRA court as untimely. The AEDPA one-year statute of limitations

excludes “[t]he time during which a properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending,” 28 U.S.C.

§ 2244(d)(2). Generally, PCRA petitions, “including a second or subsequent petition, shall be filed

within one year of the date the judgment becomes final,” 42 Pa, Cons, Stat, § 9545(b)(1); see also

Commonwealth v. Yarris, 731 A.2d 581, 586 (Pa. 1999).

The PCRA court dismissed Mr. Montanez’s second PCRA petition as time-barred. As the

Supreme Court has explicitly held, once “the state court reject[s] [a] petitioner’s PCRA petition as

untimely, it [i]s not ‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”

Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). In Pace, the Supreme Court disposed of the

argument raised by Mr, Montanez that the ruling in Artuz v. Bennett entitles him to statutory tolling

because “there is an obvious distinction between time limits, which go to the very initiation of a

petition and a court’s ability to consider that petition, and the type of ‘rule of decision’ procedural

bars at issue in Arfuz.” Pace, 544 U.S. at 417. When a state court dismisses a postconviction

petition as untimely, “that [is] the end of the matter’ for statutory tolling purposes under

§ 2244(d)(2). /d. at 414. Therefore, Mr. Montanez was not entitled to statutory tolling when he

untimely filed his second PCRA petition.

Moreover, even if Mr. Montanez had shown that he had properly filed his second PCRA

petition—which he has not—his statutory tolling argument would still not be viable. Accounting

for the statutory tolling that occurred while Mr. Montanez’s first PCRA petition was pending, Mr.

Montanez’s deadline to file a timely federal habeas petition lay on May 30, 2019. Mr. Montanez

filed his second PCRA petition on June 24, 2019, several weeks after that federal habcas petition

deadline. Thus, Mr. Montanez has again failed to show that he is entitled to statutory tolling,

B. Mr. Montanez Is Not Entitled to Equitable Tolling

Mr. Montanez also reiterates arguments raised in his § 2254 petition as to his entitlement

to equitable tolling on the basis of constitutional and due process violations, namely his trial

counsel’s ineffective assistance in failing to pursue a direct appeal, For AEDPA purposes,

“equitable tolling is proper only when the principles of equity would make [the] rigid application

Jof a limitation period] unfair.” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 Gd Cir,

1998) (internal quotation marks omitted). “[A] litigant seeking equitable tolling bears the burden

of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace, 544 U.S. at 418. Mr. Montanez must show

that he “exercised reasonable diligence in investigating and bringing” his claims. Miller, 145 F.3d

at 618-19. In determining whether Mr. Montanez was reasonably diligent, the Court considers his

“overall level of care and caution in light of his... particular circumstances.” Munchinski y,

Wilson, 694 F.3d 308, 330 Gd Cir. 2012). A showing of “mere excusable neglect” will not do.

Miller, 145 F.3d at 619.

Mr. Montanez reasserts that he is entitled to equitable tolling because his trial counsel failed

to file a direct appeal despite Mr. Montanez’s alleged requests to that effect. The magistrate judge

considered that argument at the time Mr. Montanez submitted his § 2254 petition, and she accepted

the state court’s finding that Mr. Montanez had never requested trial counsel to file a direct appeal.

Moreover, as when he first submitted his federal habeas petition, Mr. Montanez offers no

explanation as to how his trial counsel’s alleged ineffectiveness in failing to file his direct appeal

caused the 27-day delay in filing his federal habeas petition. See Schlueter v. Varner, 384 F.3d 69,

76 (3d Cir. 2004) “Generally, in a non-capital case... , attorney error is not a sufficient basis for

equitable tolling of the AEDPA’s one-year period of limitation.”).

Nor has he now established that he pursued his rights diligently, Mr. Montanez filed his

§ 2254 petition and the instant motion pro se, but that alone “does not insulate him from the

‘reasonable diligence’ inquiry and his lack of legal knowledge or legal training does not alone

justify equitable tolling.” Ross v. Varano, 712 F.3d 784, 799-800 (3d Cir. 2013). And if he had

acted with reasonable diligence, Mr. Montanez could have prepared “at least a basic pro se habeas

petition” in the month between the Pennsylvania Supreme Court’s denial of his petition for

allowance of appeal and the deadline to file a federal habeas petition. Brown v. Shannon, 322 F.3d

768, 774 (3d Cir. 2003).

Mr. Montanez has not presented facts that demonstrate extraordinary circumstances or that

he has pursued his rights with reasonable diligence, thus he remains unentitled to equitable tolling.

C. Mr. Montanez’s Motion Is Untimely Under Rule 60(b)(6)}

Mr. Montanez has also failed to timely reraise his tolling arguments under Rule 60(b)(6).

As noted above, Mr. Montanez. was obligated to move for relief under Rule 60(b)(6) “within a

reasonable time.” Fed. R. Civ. P. 60(c)(1). Mr. Montanez’s argument as to the effect of his second

PCRA filing on the tolling of the AEDPA statute of limitations has been available to him since

June 2019, and his argument as to the effect of his trial counsel’s alleged ineffective assistance has

been available to him since March 2013, when he alleges his counsel failed to file a direct appeal

despite Mr. Montanez’s exhortations. Mr. Montanez does report—and submits-evidence to support

the fact—that he has experienced medical exigencies beginning in September 2021, which

required his housing in a medical infirmary unit from December 4, 2021 to March 7, 2022. But

even taking into account the circumstances of Mr. Montanez’s health and medical rehabilitation,

the Court does not find that a 28-month period between the issuance of the challenged judgment

and the filing of this Rule 60(b) motion constitutes “reasonable time,” particularly when the onset

of Mr. Montanez’s medical concerns allegedly occurred almost a year to the day after this Court

ruled on his § 2254 motion. Cf Moolenaar, 822 F.2d at 1348.

Therefore, the Court denies Mr. Montanez’s tolling arguments under Rule 60(b)(6) as both

lacking merit and as untimely.'

i Mr. Montanez does briefly raise in his motion that he “has been imprisoned for over eleven (11)

years for a murder that he did not commit.” Rule 60(b) Mot. at 14. Construing Mr. Montanez’s motion

liberally, the Court could potentially find this to be an assertion of “actual innocence,” an assertion which

could, in severely limited circumstances, justify the grant of a Rule 60(b}(6) motion. “[A]ctual innocence,

if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural

or... expiration of the [AEDPA] statute of limitations.” McQuiggin v, Perkins, 569 U.S, 383, 386

(2013). “To qualify for this exception, the petitioner must present new, reliable evidence showing it is more

likely than not that no reasonable juror would have voted to convict him.” Reeves y. Fayette SCT, 897 F.3d

154, 157 (3d Cir. 2018). Mr. Montanez’s brief allusion to his immocence cannot meet these requirements,

He gestures to no new evidence that would support a finding that he did not commit the crimes of which he

was convicted. Cf Howell v. Superintendent Albion SCL 978 F.3d 54, 61 (3d Cir. 2020) (finding that

evidence of three witnesses’ recantations and the confession of an alternate suspect was “troubling enough

that an evidentiary hearing [wa]s warranted”); Jackson v. Wenerowicz, No, 14-cv-2996, 2021 WL 2072230,

Ill. Mr, Montanez’s Motion Is Untimely Under Rule 60(b)(2)

Mr. Montanez purports to make an argument under Rule 60(b)(2) that he has newly

discovered evidence. See Fed. R. Civ. P. 60(b)(2). Specifically, he alleges that his PCRA counsel

failed to forward Mr. Montanez his trial transcripts until his federal habeas petition was already

time-barred. Based on exhibits attached to his Rule 60(b) motion, it appears that his PCRA counsel

sent these transcripts to Mr. Montanez on or about October 18, 2019. That indicates that Mr.

Montanez was in possession of this evidence approximately two months prior to the time when

respondents filed their response in opposition to Mr. Montanez’s § 2254 petition; four months

before Mr. Montanez filed his reply; five months before the magistrate judge issued her Report

and Recommendation; and 10 months before Mr. Montanez filed his objections to the Report and

Recommendation, The trial transcripts therefore cannot be considered “newly discovered”

evidence for purposes of the instant motion. See, e.g., Peterson y. Chetirkin, No. 21-cv-8716, 2023

WL 2784390, at *9 (D.N.J. Apr. 5, 2023) Cinding no “newly discovered evidence” where the

information petitioner asked to be considered “would necessarily have been known to him when

he filed his opposition to respondents’ motion to dismiss”); Davis v. Superintendent of SCT Retreat,

20-cv-104, 2022 WL 1472876, at *1 (M.D. Pa. May 10, 2022) (dismissing claim under Rule

60(b)(2) as untimely where latest piece of “new evidence” was presented in state hearings in 2019

and petitioner filed his motion for Rule 60(b) relief in 2022).

And to the extent that Mr. Montanez raises an argument under Rule 60(b)(2), his motion is

untimely. Unlike the relatively flexible timeline prescribed for motions made under Rule 60(b)(6),

at *4 (E.D. Pa. May 24, 2021) (considering petitioner’s allegedly “new evidence,” including a letter of the

sister of a co-defendant and an affidavit of a fellow inmate, before concluding that it would not compel a

reasonable juror to acquit the petitioner). Mr. Montanez’s conclusory assertion of his innocence here does

not show that “it is more likely than not that no reasonable juror would have convicted him in the light of

... hew evidence.” Schlup vy, Delo, 513 U.S. 298, 327 (1995).

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a motion under Rule 60(b)(2) has a “more specific 1-year deadline” because it is among “the most

open-ended grounds of relief.” Gonzalez, 545 U.S. at 535; see also Fed. R. Civ. P. 60(c)(1). Here,

Mr. Montanez has filed his motion 28 months after the Court dismissed his § 2254 petition with

prejudice. Therefore, Mr. Montanez’s motion is clearly untimely to the extent that he seeks to rely

on Rule 60(b)(2). See Fed. R Civ. P. 60(c)(1); Kemp v. United States, 142 8, Ct. 1856, 1860, 1865

(2022) (finding that a Rule 60(b) motion made “almost two years” after district court denied a

§ 2255 petition was untimely under Rule 60(c)(1)). So, to the extent Mr. Montanez’s Rule 60(b)(2)

claim asserts a defect in this Court’s ruling on his § 2254 petition and is not, in fact, a successive

habeas petition, it is denied as untimely.

IV. A Certificate of Appealability Will Not Issue

A petitioner may appeal the final order in a habeas proceeding only if a circuit justice or

judge issues a certificate of appealability. 28 U.S.C. § 2253¢c)(1)(A). The Third Circuit Court of

Appeals has reaffirmed that a petitioner must also obtain a certificate of appealability before he

“appeals the denial of a Rule 60(b) motion seeking reconsideration of a dismissal of a habeas

petition, even if that dismissal was on procedural grounds.” Bracey v. Superintendent Rockview

SCH, 986 F.3d 274, 281 (3d Cir, 2021). “A certificate of appealability should issue .. . ifthe prisoner

shows, at least, that jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right, and that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

478 (2000).

Because jurists of reason would not find it debatable that this Court’s procedural ruling is

correct, no certificate of appealability will issue here.

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CONCLUSION

For these reasons, the Court denies Mr. Montanez’s motion for relief under Rule 60(b), and □

no certificate of appealability will issue. An appropriate order follows.

BY THE COURT:

Ler.

E E.K, PRATTER

UNITED STATES DISTRICT JUDGE

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