The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHARLES TALBERT, : CIVIL ACTION
Petitioner, :
:
v. :
:
LAUREL HARRY, et al., : NO. 22-cv-2011
Respondents, :
MEMORANDUM
KENNEY, J. JULY 31, 2024
The Court will now consider petitioner Charles Talbert’s motion for relief from our prior
order to dismiss without prejudice his petition for a writ of habeas corpus (ECF No. 15). The Court
adopted the recommendation of the Honorable U.S. Magistrate Judge Lynne A. Sitarski to dismiss
Talbert’s habeas petition because, at the time of filing, Talbert had failed to fully exhaust his state
court remedies. Talbert subsequently filed his motion for relief under Federal Rule of Civil
Procedure 60(b)(5). For the reasons set forth below, Talbert’s motion will be denied.
I. BACKGROUND
In October of 2019, Talbert was convicted in the Philadelphia County Court of Common
Pleas for Possession of an Instrument of Crime and Recklessly Endangering Another Person. ECF
No. 11 at 1. In December of that year, Talbert was sentenced to a total of 41 to 84 months’
imprisonment. Id.
Shortly after sentencing, Talbert filed a post-sentence motion in the trial court and an
interlocutory appeal in the Pennsylvania Superior Court. ECF No. 10 at 2. The post-sentence
motion was denied by operation of law on May 6, 2020, and Talbert filed a second appeal to the
Superior Court on May 20, 2020. Id. The Superior Court denied the first appeal as interlocutory
and denied the second appeal for Talbert’s failure to file a brief. Id.; see also ECF No. 11 at 2.
Talbert subsequently filed a petition to the state Supreme Court for an allowance of appeal
nunc pro tunc, which was still pending when Talbert petitioned this Court for a writ of habeas
corpus on May 19, 2022. ECF No. 11 at 3; see generally ECF No. 1.
In Talbert’s pro se request for habeas relief, he advanced three arguments: (1) the
circumstances surrounding his arrest made his sentence excessive and unreasonable; (2) there was
insufficient evidence presented at trial to prove he possessed the requisite intent; and (3) the trial
judge violated due process by failing to recuse herself at sentencing. ECF No. 1 at 6-9. Talbert
affirmed in his petition that all state appellate remedies had been exhausted, despite his nunc pro
tunc petition still pending at the time in the Pennsylvania Supreme Court.
Because Talbert’s habeas petition contained claims that had not yet been exhausted in state
court, we denied it without prejudice on December 12, 2022. See ECF No. 11 at 4-7.
On April 2, 2024, the Pennsylvania Supreme Court denied Talbert’s petition for allowance
of appeal nunc pro tunc. See Commonwealth v. Talbert, 315 A.3d 1228 (Table) (Pa. 2024).
Thereafter, on June 7, 2024, Talbert filed the instant motion for relief from our order dismissing
his habeas petition.1 See ECF No. 15. Talbert argues that, under Fed. R. Civ. P. 60(b)(5), he is
entitled to reopen his habeas petition because the grounds for our dismissal have been satisfied by
the Pennsylvania Supreme Court’s April 2, 2024, ruling. Id.
1 While Talbert also requests permission to “amend his [habeas petition] to include more grounds for relief,” the
only legal rule cited is FRCP 60(b)(5) in support of his request for relief from judgment. See ECF No. 15.
On July 2, 2024, counsel for Respondents filed a memorandum in response to Talbert’s
motion. See ECF No. 18. They argue that Rule 60(b) only provides relief from final judgments,
and a dismissal without prejudice where the deficiencies can be cured by refiling is not a final
judgment. Id. at 3. Thus, Rule 60(b) is not the proper avenue for Talbert to challenge the dismissal,
and he should instead file a new habeas petition now that his remedies in state court have been
exhausted. Id. at 3-4.
II. STANDARD OF REVIEW
The federal courts’ power to grant habeas relief is limited. A federal court cannot grant a
petition for a writ of habeas corpus unless the petitioner has exhausted the remedies available in
state court. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing 28 U.S.C. §
2254(b)(1)(A)). To exhaust his remedies, a petitioner must have fairly presented the same claim
to the state court and pursued that claim through one complete round of the state’s established
appellate review process. See Bronshtein v. Horn, 404 F.3d 700, 725 (3d Cir. 2005) (citation
omitted). If a petitioner failed to exhaust his state remedies and would now be procedurally barred
from presenting his claims in state court, those claims are procedurally defaulted for purposes of
federal habeas relief. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
A petitioner may overcome a procedural default by demonstrating either (1) good cause
for the default and actual prejudice as a result of the violation of federal law or (2) that failure to
consider the claims would result in a fundamental miscarriage of justice. Coleman, 501 U.S. at
750.
Rule 60(b) provides the grounds for relief from a final judgment, order, or proceeding. The
rule applies only to a “limited” set of circumstances and is wholly intended to provide an exception
to the general rule favoring finality of decisions. Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005).
Subsection (5) of the rule provides that:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding . . . [if] the judgment has been satisfied,
released, or discharged; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable.
Fed. R. Civ. P. 60(b)(5). Subsection (5) “may not be used to challenge the legal conclusions on
which a prior judgment or order rests,” but is rather reserved for situations where a “significant
change either in factual conditions or in law” renders continued enforcement “detrimental to the
public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009) (quoting Rufo v. Inmates of Suffolk
County Jail, 502 U.S. 367, 384 (1992)). The party seeking relief under Rule 60(b) bears the burden
of demonstrating that such a situation exists. Id.
III. DISCUSSION
The fatal flaw in Talbert’s motion is that he is using it to attack a judgment that is not final.
Despite our dismissal being conclusive as to Talbert’s particular habeas petition, “an order
dismissing a complaint without prejudice is not a final order as long as the plaintiff may cure the
deficiency and refile the complaint.” Ahmed v. Dragovich, 297 F.3d 201, 207 (3d Cir. 2002)
(internal citation omitted). Where the plaintiff cannot cure the deficiency upon refiling, a dismissal
without prejudice may be treated as a final and appealable order. Id. However, Talbert’s habeas
petition was denied without prejudice because he had failed to exhaust his state court remedies,
which is clearly a curable deficiency; indeed, Judge Sitarski’s Report and Recommendation clearly
contemplates Talbert filing a new habeas petition once his state court remedies are exhausted. ECF
No. 10 at 6. Therefore, this Court’s denial of Talbert’s prior habeas petition does not qualify as a
final judgment and is in turn not amenable to a 60(b) motion. See Banister v. Davis, 590 U.S. 504,
518-19 (2020). Now that Talbert has exhausted his state court remedies, he may file a new habeas
petition.2
IV. CONCLUSION
For the foregoing reasons, petitioner’s motion is DENIED. Petitioner may proceed by
filing a new habeas petition. An appropriate Order will follow.
BY THE COURT:
/s/ Chad F. Kenney
_________________________
CHAD F. KENNEY, JUDGE
2 The Court notes that Petitioner has filed a new habeas petition under a separate case, captioned 24-cv-3309 (ECF
No. 1). The Court will consider this petition in due course.