Eric Greene v. Superintendent Smithfield SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 16-3636

_____________

ERIC GREENE,

a/k/a JARMAINE Q. TRICE

v.

SUPERINTENDENT SMITHFIELD SCI;

THE DISTRICT ATTORNEY OF THE COUNTY OF

PHILADELPHIA;

THE ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

Eric Greene,

Appellant

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Judge: Honorable Joel H. Slomsky

D.C. Civil No. 2-04-cv-05200

______________

Argued September 11, 2017

Before: VANASKIE, RENDELL, and FISHER

Circuit Judges

(Opinion Filed: February 9, 2018)

Michael Wiseman [ARGUED]

Post Office Box 120

Swarthmore, PA 19081

Counsel for Appellant

Catherine B. Kiefer [ARGUED]

Susan E. Affronti

Ronald Eisenberg

Kathleen E. Martin

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

________________

OPINION

________________

VANASKIE, Circuit Judge.

Eric Greene appeals from the denial of his motion to

vacate the final judgment entered against him in his habeas

corpus challenge to the validity of his 1996 state court

conviction on charges of second degree murder, robbery, and

conspiracy to commit robbery. At the core of this appeal is

whether the failure to properly present to the state courts a

claim that Greene’s direct appeal counsel was ineffective can

2

be excused on the ground that his postconviction counsel was

ineffective in not pursuing the claim. After this appeal was

filed, the Supreme Court answered this question in the

negative, holding that “a federal court [may not] hear a

substantial, but procedurally defaulted, claim of ineffective

assistance of appellate counsel when a prisoner’s state

postconviction counsel provides ineffective assistance by

failing to raise that claim.” Davila v. Davis, 137 S. Ct. 2058,

2065 (2017). In light of Davila, we will affirm the District

Court’s denial of Greene’s motion to vacate.

I.

This is the second time Greene’s habeas proceeding has

been before us. See Greene v. Palakovich, 606 F.3d 85 (3d Cir.

2010), aff’d, 565 U.S. 34 (2011). The underlying facts and

procedural history are set out in great detail in our earlier

opinion, id. at 87–93, and will not be restated here. Instead, we

will recite only those facts pertinent to the question of whether

Greene is entitled to vacate the judgment against him in order

to pursue a claim of ineffective assistance of appellate counsel

(the “IAAC claim”).

During Greene’s trial for murder, robbery, and

conspiracy, the prosecution introduced the redacted

confessions of two of Greene’s nontestifying codefendants.

After a jury returned a guilty verdict, Greene filed an appeal to

the Pennsylvania Superior Court, arguing that the trial court’s

decision to admit the redacted confessions violated the rule

announced in Bruton v. United States, 391 U.S. 123 (1968).

The Pennsylvania Superior Court rejected this claim. After

initially granting Greene’s request for allowance of appeal, the

Pennsylvania Supreme Court summarily dismissed the

3

allowance of appeal as improvidently granted. Commonwealth

v. Trice, 727 A.2d 1113 (Pa. 1999).1

Here, Greene contends that appellate counsel rendered

ineffective assistance when he failed to advise Greene that he

had the right to petition the Supreme Court of the United States

for a writ of certiorari following the Pennsylvania Supreme

Court’s summary dismissal of his appeal. In the briefing

presented to the Commonwealth’s High Court, Greene argued

that Gray v. Maryland, 523 U.S. 185 (1998), decided after the

Pennsylvania Superior Court had rejected Greene’s

Confrontation Clause claim, entitled him to relief on his

Confrontation Clause claim.2 Having dismissed Greene’s

appeal as improvidently granted, the Pennsylvania Supreme

Court did not opine on the strength of Greene’s Confrontation

Clause claim in light of Gray.

Greene’s conviction became final on July 29, 1999,

when the time for filing a certiorari petition expired. In August

of 1999, Greene, proceeding pro se, filed a petition under the

1

Greene is also known as Jarmaine Trice. For purposes

of clarity, we will refer to the Appellant as Eric Greene.

2

In Gray, the Supreme Court held that the

Confrontation Clause bars the admission of a nontestifying

codefendant’s redacted confession at trial if the redaction

“replace[s] a proper name with an obvious blank . . . or

similarly notif[ies] the jury that a name has been deleted . . . .”

523 U.S. at 195. This is the kind of redaction that was made in

the confessions of Greene’s codefendants that were introduced

at his trial.

4

Pennsylvania Post Conviction Relief Act, (“PCRA”), 42 Pa.

Cons. Stat. § 9541, et seq. The attorney appointed to represent

Greene in the PCRA proceeding filed a “No Merit Letter”

pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super.

Ct. 1998). In fulfilling its obligation under Finley, the state

trial court undertook an examination of the claims presented in

Greene’s pro se PCRA petition. The state trial court observed

that Greene had asserted “several claims of ineffective

assistance of counsel,” but “[t]he majority of these claims . . .

[were] not pled with the requisite specificity to allow review.”

(App. 128.) It then concluded that “the record reveals no

claims of arguable merit that could be raised under the PCRA,”

(id. at 131), and dismissed Greene’s petition.

Greene appealed the dismissal of his PCRA petition to

the Pennsylvania Superior Court. In affirming the dismissal,

the Superior Court held that Greene’s claims of ineffective trial

and appellate counsel were “deemed waived” by virtue of

Greene’s failure to develop those claims “with any specificity.”

(Id. at 117.) On July 27, 2004, the Pennsylvania Supreme

Court denied Greene’s petition for allowance of appeal.

Commonwealth v. Trice, 857 A.2d 679 (Pa. 2004).

In November of 2004, Greene commenced this federal

habeas corpus proceeding pursuant to 28 U.S.C. § 2254.

Included among the claims he presented were a Confrontation

Clause claim based upon Gray and claims of ineffective

assistance of trial, appellate, and PCRA counsel.

The Magistrate Judge assigned to Greene’s case issued

a comprehensive Report and Recommendation that concluded

by proposing that the habeas petition be dismissed, but that a

certificate of appealability be issued “with respect to

[Greene’s] Sixth Amendment Confrontation Clause claim

5

concerning the redacted confessions of his codefendants . . . .”

(App. 64.) Pertinent to the matter now before us, the

Magistrate Judge found that because the Pennsylvania Superior

Court had concluded that Greene waived his ineffective

assistance of trial and appellate counsel claims, they could not

now be considered on federal habeas review, observing that

Greene “has not argued that any cause and prejudice will

excuse the default . . . .” (Id.) Greene did not object to the

Report and Recommendation. On April 2, 2007, the District

Court adopted the Report and Recommendation, dismissed the

habeas petition, and granted a certificate of appealability on the

Confrontation Clause claim.

A divided panel of our Court rejected the Confrontation

Clause claim and affirmed the dismissal of the habeas petition.

See Palakovich, 606 F.3d at 106. With respect to Greene’s

reliance upon Gray, we held that “clearly established Federal

law” must be determined as of the date of the last relevant state-

court decision, and not when the conviction became final. Id.

This meant that Gray, decided after the Superior Court ruling

but before Greene’s conviction became final, could not be

relied upon for purposes of determining whether the state court

decision resulted from an unreasonable application of “clearly

established Federal Law, as determined by the Supreme Court

of the United States.”3 Id. at 98 (quoting 28 U.S.C. §

2254(d)(1)).

3

Greene was tried jointly with several codefendants,

including Naree Abudullah. In 2012, we assessed the

applicability of Gray to the redacted confessions introduced at

Greene’s trial in the context of Abdullah’s contention that he

was entitled to habeas relief on the ground that the admission

of the codefendants’ redacted confessions violated his

6

The United States Supreme Court thereafter granted

Greene’s petition for a writ of certiorari. Greene v. Fisher, 563

U.S. 917 (2011). On November 8, 2011, the Court

Confrontation Clause rights. See Abdullah v. Warden SCI

Dallas, 498 F. App’x 122 (3d Cir. 2012). Unlike Greene,

Abdullah was able to rely upon Gray because his appeal to the

Pennsylvania Superior Court was still pending when Gray was

issued. Thus, we were confronted with the question of whether

the Superior Court’s rejection of Abdullah’s Confrontation

Clause claim was the result of “an unreasonable application of

clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1), and that

clearly established Federal law included Gray. In Abdullah’s

case, we held that, although the admission of the “redacted

confessions raise[d] legitimate constitutional concerns,” the

additional, conflicting evidence introduced at trial “cast doubt

upon the . . . assertion that [the] redacted confessions gave rise

to an immediate inference that Abdullah was among the

individuals” who took part in the robbery. Id. at 133–34.

Because Gray cautions that the admission of a redacted

confession does not necessarily rise to the level of a

Confrontation Clause violation if “the trial [record] indicates

that there [were] more participants than the redacted

confession ha[d] named[,]’” id. at 134 (quoting Gray, 523 U.S.

at 195) (internal brackets omitted), we concluded that the

“redacted confessions, considered in conjunction with the

other evidence presented by the government, arguably

prevented a direct inference of Abdullah’s guilt from the

confessions.” Id. We thus held that Abdullah failed to

establish that the “Superior Court’s decision to reject

Abdullah’s confrontation claim constituted” an unreasonable

application of clearly established Federal law. Id.

7

unanimously affirmed our ruling. See Greene v. Fisher, 565

U.S. 34 (2011). Commenting on the fact that Greene could not

obtain judicial review of his Confrontation Clause claim based

upon Gray, Justice Scalia stated:

We must observe that Greene’s

predicament is an unusual one of

his own creation. Before applying

for federal habeas, he missed two

opportunities to obtain relief under

Gray: After the Pennsylvania

Supreme Court dismissed his

appeal, he did not file a petition for

writ of certiorari from this Court,

which would almost certainly have

produced a remand in light of the

intervening Gray decision . . . . Nor

did Greene assert his Gray claim in

a petition for state postconviction

relief.

Id. at 41.

More than three years after the Supreme Court rejected

Greene’s reliance upon Gray to challenge the validity of his

1996 conviction, Greene, proceeding pro se, filed a motion

pursuant to Rule 60(b)(6) of the Federal Rules of Civil

Procedure to vacate the District Court Judgment entered on

April 2, 2007.4 Greene’s motion sought to resurrect his

defaulted IAAC claim on the strength of the Supreme Court’s

2012 decision in Martinez v. Ryan, 566 U.S. 1 (2012).

4

Counsel thereafter entered an appearance on behalf of

Greene and filed an amended Rule 60(b) motion.

8

Martinez held that “[w]here, under state law, claims of

ineffective assistance of trial counsel must be raised in an

initial-review collateral proceeding, a procedural default will

not bar a federal habeas court from hearing a substantial claim

of ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that

proceeding was ineffective.” Id. at 17 (emphasis added). The

gist of Greene’s argument was that his direct appeal counsel

was ineffective for not advising him of the availability of

seeking Supreme Court review of his substantial Confrontation

Clause claim based upon Gray; that his first opportunity to

present this IAAC claim was at his initial PCRA proceeding;

and that his PCRA counsel was ineffective for not having

presented what Greene perceived to be a meritorious IAAC

claim. Greene maintained that the rationale underlying

Martinez––that a convicted person should have one counseled

opportunity to present an ineffective assistance of counsel

claim––applied in the appellate context, as well as the trial

setting.

By Order dated August 26, 2016, the District Court

denied Greene’s Rule 60 (b)(6) motion. In the course of a

comprehensive Opinion accompanying the Order, the District

Court summarized the following reasons for denying the

Motion:

First, [Greene’s] Motion

constitutes an impermissible

successive habeas petition.

Second, Martinez . . . does not

apply to [Greene’s] ineffective

assistance of counsel claim.

Finally, even if [Greene’s] Motion

did not constitute an impermissible

9

successive habeas petition, and

even if Martinez applied to provide

“cause” for [Greene’s] procedural

default, the equitable factors

warranting consideration under

Rule 60(b) do not weigh in

[Greene’s] favor.5

5

We have set forth five equitable factors that courts

must consider in passing upon a Rule 60(b)(6) motion, Cox v.

Horn, 757 F.3d 113, 116, 124–26 (3d Cir. 2014), each of which

the District Court analyzed in great detail, including: (1) the

timeliness of Greene’s Rule 60(b)(6) motion; (2) the merits

underlying Greene’s ineffective assistance of counsel claim;

(3) the amount of time that elapsed between Greene’s

conviction and the commencement of habeas proceedings; (4)

Greene’s diligence in pursuing review of his claims; and (5)

the gravity of Greene’s sentence. See (App. 20–28.) Of these

factors, the District Court found that the first, second, and

fourth all weighed against granting relief, while the third and

fifth factors were neutral and therefore did not support nor

detract from Greene’s claim. Id.

Beyond the five Cox factors, the District Court

considered the following two additional equitable factors: (1)

Greene’s “aver[ment] that ‘state and federal court orders and

opinions over the past decade have––rightly or wrongly––

protected institutional, procedural, and structural interests at

the expense of [Greene’s] ability to litigate the Gray claim[;]”

and (2) Greene’s “argu[ment] that irregularities in the trial and

appellate process ‘detract from the confidence [the District]

Court should have in the verdict.’” Id. at 28–29. The District

10

(App. 13.) Concluding that “there may be room for debate on

the issues” addressed in its Opinion, the District Court issued

a certificate of appealability. (Id. at 30) This timely appeal

followed.

II.

The District Court had jurisdiction pursuant to 28

U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§ 1291

and 2253.6 We review the denial of a Rule 60(b) motion for

Court concluded that, on balance, “the Cox factors . . .

weigh[ed] heavily against relief and [Greene’s] additional

proffered support [was] not enough to warrant 60(b) relief in

this case.” Id. at 29.

6

Appellees argue here, as they did in the District Court,

that we lack jurisdiction to consider Greene’s Rule 60(b)

motion, claiming that it is an impermissible second or

successive habeas petition because it seeks to raise a claim not

previously presented in the initial habeas proceedings, i.e.,

Greene’s IAAC claim, and Greene did not receive this Court’s

authorization to file a second habeas petition as required by 28

U.S.C. § 2244(b)(3)(A). The District Court agreed with

Appellees. Contrary to the District Court’s view, Greene’s

Rule 60(b) motion, premised as it was upon Martinez, was not

an impermissible second or successive habeas petition under

the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). See Norris v. Brooks, 794 F.3d 401, 403 n.2 (3d

Cir. 2015) (holding that petitioner’s Rule 60(b) motion

invoking Martinez was not a successive habeas petition

“because it ‘merely asserted that a previous ruling which

11

abuse of discretion. Cox, 757 F.3d at 118 (citing Brown v.

Phila. Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003)). “A

district court abuses its discretion when it bases its decision

upon a clearly erroneous finding of fact, an erroneous

conclusion of law, or an improper application of law to fact.”

Id. (citing Morris v. Horn, 187 F.3d 333, 341 (3d Cir. 1999)).

III.

Greene must demonstrate “extraordinary

circumstances” to obtain relief under Rule 60(b)(6).7 Cox, 757

F.3d at 115. The “extraordinary circumstance” claimed by

Greene is the holding in Martinez, decided after the judgment

in his habeas proceedings concluded, which allowed a claim of

precluded a merits determination was in error’”) (quoting

Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005)) (internal

brackets omitted).

7

“Rule 60(b) authorizes a district court to grant a party

relief from judgment for various specific reasons, as well as

‘any other reason that justifies relief.’” Norris, 794 F.3d at 404

(quoting Fed. R. Civ. P. 60(b)(6)). Under this catch-all

provision, “[r]elief is appropriate . . . only in ‘extraordinary

circumstances where, without such relief, an extreme and

unexpected hardship would occur.’” Id. (quoting Sawka v.

Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)). “Such

circumstances,” the Supreme Court has emphasized, “rarely

occur in the habeas context,” Gonzalez v. Crosby, 545 U.S.

524, 535 (2005), and “[i]ntervening developments in the law

by themselves rarely constitute the extraordinary

circumstances required for relief under Rule 60(b)(6).”

Agostini v. Felton, 521 U.S. 203, 239 (1997).

12

ineffectiveness of postconviction counsel to serve as “cause”

to allow an otherwise procedurally defaulted claim to be heard

in federal court.

Greene’s IAAC claim was not properly presented to the

state courts, and is thus deemed to be procedurally defaulted

for purposes of federal habeas corpus review. “[A] federal

court may not review federal claims that were procedurally

defaulted in state court. . . .” Davila, 137 S. Ct. at 2064

(internal citation omitted). “A state prisoner may overcome the

prohibition on reviewing procedurally defaulted claims if he

can show ‘cause’ to excuse his failure to comply with the state

procedural rule and ‘actual prejudice resulting from the alleged

constitutional violation.’” Id. at 2064–65 (quoting Wainwright

v. Sykes, 433 U.S. 72, 84 (1977); Coleman v. Thompson, 501

U.S. 722, 750 (1991)).8 “To establish ‘cause’—the element of

the doctrine relevant in this case—the prisoner must ‘show that

some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule.’”

Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)).

8

A federal court may, in appropriate circumstances,

invoke the “fundamental miscarriage of justice exception” to

review an otherwise procedurally defaulted claim. McQuiggin

v. Perkins, 569 U.S. 383, 395 (2013). This exception,

however, is restricted “to a severely confined category[] of

cases in which new evidence shows ‘it is more likely than not

that no reasonable juror would have convicted the petitioner.’”

Id. (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995))

(internal brackets omitted). Because Greene has not proffered

evidence of actual innocence, the fundamental miscarriage of

justice exception is accordingly not at play here.

13

Greene asserts that the ineffectiveness of his PCRA counsel

qualifies as “cause” for the procedural default of his IAAC

claim.

At the time Greene’s habeas proceedings concluded

with the Supreme Court’s ruling in 2011, it was well settled

that ineffective assistance of post-conviction counsel could not

qualify as “cause” to excuse a procedural default. Coleman,

501 U.S. at 755; see also Sweger v. Chesney, 294 F.3d 506,

522 n.16 (3d Cir. 2002) (“[T]here is no right to counsel for state

post-conviction proceedings and, therefore, no claim of

constitutionally ineffective assistance of counsel may be

made.”). In Martinez, however, the Supreme Court carved out

a “narrow exception” to Coleman’s general rule that allows

federal habeas courts to review procedurally defaulted claims

of trial counsel ineffectiveness if the applicable state law

requires that those claims be “raised in an initial-review

collateral proceeding,” rather than on direct appeal. 566 U.S.

at 9, 17. Specifically, in Martinez, the petitioner attempted to

argue on direct appeal that his trial counsel was ineffective, but

was prohibited from doing so because Arizona law required

such claims to be raised in a separate collateral proceeding. Id.

at 6. Postconviction counsel subsequently failed to raise an

ineffective-assistance claim during the collateral proceeding,

thus causing a procedural default of the claim. Id. Had

Coleman applied, counsel’s failure in this regard would not

have “excuse[d] the procedural default” of petitioner’s

ineffective-assistance claim because, under Coleman, “an

attorney’s errors in a postconviction proceeding do not qualify

as cause for a default.” Id. at 7–8 (citing Coleman, 501 U.S. at

754–55). In Martinez, the Court crafted an exception to this

rule by holding that, in such a situation––i.e., where state law

prohibits convicted persons from alleging ineffective

14

assistance of trial counsel on direct review––“a procedural

default will not bar a federal habeas court” from hearing the

petitioner’s ineffective assistance of trial counsel claim if the

default is due to the subsequent ineffectiveness of

postconviction counsel during the collateral proceeding. Id. at

17.

In his Rule 60(b)(6) motion, Greene relied upon

Martinez to argue that PCRA counsel’s failure to assert a claim

of appellate counsel ineffectiveness constituted an

“extraordinary circumstance” so as to warrant Rule 60(b)(6)

relief. (Appellant’s Br. at 37.) As support, Greene pointed to

our decision in Cox, where we held that “Martinez, without

more, does not entitle a habeas petitioner to Rule 60(b)(6)

relief[,]” but that Martinez could support such a motion if other

equitable considerations are present. 757 F.3d at 124–26.

Greene’s reliance upon Martinez, however, is now

foreclosed by Davila. There, the petitioner asked the Supreme

Court to do precisely what Greene is asking us to do here,

namely: “extend Martinez to allow a federal court to hear a

substantial, but procedurally defaulted, claim of ineffective

assistance of appellate counsel when a prisoner’s state

postconviction counsel provides ineffective assistance by

failing to raise that claim.” Davila, 137 S. Ct. at 2065. In

declining to extend Martinez to claims of appellate counsel

ineffectiveness, the Supreme Court explained that “[t]he Court

in Martinez made clear that it exercised its equitable discretion

in view of the unique importance of protecting a defendant’s

. . . right to effective assistance of trial counsel.” Id. at 2066

(emphasis added). “[C]laims of ineffective assistance of

appellate counsel,” the Court opined, “necessarily must be

heard in collateral proceedings, where counsel is not

constitutionally guaranteed.” Id. at 2068 (emphasis in

15

original). An ineffective counsel claim may be presented only

where counsel is constitutionally guaranteed. Wainwright v.

Torna, 455 U.S. 586, 587–88 (1982) (holding that where there

is no constitutional right to counsel, there can be no deprivation

of effective assistance). Thus, Greene does not have a claim

for ineffective assistance of his PCRA counsel in relation to his

IAAC claim. Accordingly, Davila compels the conclusion that

Greene cannot demonstrate “cause” to excuse the procedural

default of his IAAC claim.

Thus, the state of the law with respect to Greene’s

procedural default of his IAAC claim remains the same today

as when the default occurred: alleged ineffectiveness of PCRA

counsel cannot overcome the consequence of the failure to

present the IAAC claim to the state courts in the first instance.

See Coleman, 501 U.S. at 755. Because the law remains

unchanged as to Greene, he cannot demonstrate the requisite

“extraordinary circumstances” to warrant setting aside the

District Court’s judgment in this case. Thus, the District Court

correctly concluded in holding that Martinez did not afford

Greene a right to relief here.9

IV.

For the foregoing reasons, we will affirm the District

9

In light of our decision that Davila compels rejection

of Greene’s reliance upon the alleged ineffectiveness of his

PCRA counsel as “cause” for the procedural default of his

IAAC claim, there is no need to address the District Court’s

consideration of the equitable factors governing Rule 60(b)(6)

motions.

16

Court’s August 29, 2016, denial of Greene’s Rule 60(b)

motion.

17