                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _________________

                                   No. 12-9006
                                _________________

                              HUBERT L. MICHAEL,
                                             Appellant
                                      v.

      JOHN E. WETZEL, SECRETARY PENNSYLVANIA DEPARTMENT OF
      CORRECTIONS; LOUIS FOLINO, SUPERINTENDENT OF THE STATE
       CORRECTIONAL INSTITUTION AT GREENE; MARIROSA LAMAS,
            SUPERINTENDENT OF THE STATE CORRECTIONAL
                      INSTITUTION AT ROCKVIEW
                 ____________________________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 96-cv-01554)
                    District Judge: Honorable John E. Jones III
                    ____________________________________

                                Argued May 20, 2014

          Before: AMBRO, GREENBERG, and NYGAARD, Circuit Judges

                            (Opinion filed: June 30, 2014)

Amy G. Donnella, Esquire (Argued)
Timothy P. Kane, Esquire
Billy H. Nolas, Esquire
Federal Community Defender Office for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106

Ronald C. Travis, Esquire
Rieders, Travis, Humphrey, Harris, Waters & Waffenschmidt
161 West Third Street
P.O. Box 215
Williamsport, PA 17701

       Counsel for Appellant

Kathleen G. Kane
  Attorney General
Lawrence M. Cherba
  Executive Deputy Attorney General
Criminal Law Division
James P. Barker, Esquire (Argued)
Office of Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square, 16th Floor
Harrisburg, PA 17120

       Counsel for Appellee

                                     _________________

                                         OPINION
                                     _________________

PER CURIAM

       Hubert Michael appeals the District Court’s order denying the motion he filed

pursuant to Federal Rule of Civil Procedure 60(b)(6). For the reasons that follow, we

affirm the District Court’s order.

       Background

       The procedural history and factual background of this case are well known to the

parties, set forth in our prior opinions—Michael v. Horn, 459 F.3d 411 (3d Cir. 2006),

and Michael v. Horn, 476 F. App’x 277 (3d Cir. 2011)—and will not be discussed at

length. In 1994, Michael pleaded guilty in the Court of Common Pleas for York County,

                                             2
Pennsylvania to first-degree murder and kidnapping for the shooting death of sixteen-

year-old Trista Eng. At sentencing, Michael stipulated that there were two aggravating

factors and no mitigating factors. As a result, he was sentenced to death. See 42 Pa.

Cons. Stat. § 9711(c)(1)(iv). On automatic direct appeal, at Michael’s request the

Supreme Court of Pennsylvania affirmed his conviction and sentence. Commonwealth v.

Michael, 674 A.2d 1044 (1996). He later authorized the filing of a petition filed pursuant

to Pennsylvania’s Post Conviction Relief Act (PCRA) in the Commonwealth Court of

Common Pleas and a petition pursuant to 28 U.S.C. § 2254 in the United States District

Court for the Middle District of Pennsylvania. The District Court stayed the § 2254

petition pending the PCRA proceedings.

      In 2001, after completing his PCRA proceedings, see Commonwealth v. Michael,

755 A.2d 1274 (Pa. 2000), Michael sought to terminate his federal habeas proceedings

and to remove the Capital Habeas Corpus Unit (“CHCU”) as counsel. Because his

counsel from the CHCU challenged his competency, the District Court appointed

separate counsel, Joseph Cosgrove, for Michael as well as a psychiatrist, Dr. Robert

Wettstein, to perform an evaluation. In September 2002, the District Court held an

evidentiary hearing and conducted a colloquy with Michael concerning the termination of

his habeas proceedings. It subsequently found Michael competent and dismissed his

§ 2254 petition. The Court also dismissed the CHCU lawyers and Cosgrove as counsel.

Although the CHCU lawyers had been removed as counsel, they filed a notice of appeal

on Michael’s behalf.
                                            3
         After initially requesting that the appeal be dismissed, Michael decided that he

wished to continue with the appeal. We issued a certificate of appealability on whether

the District Court violated former 21 U.S.C. § 848(q)(4)(B) 1 in dismissing Cosgrove as

Michael’s counsel and, if so, whether the error was harmless. When Michael again

vacillated on proceeding with the appeal in August 2006, we remanded the matter to the

District Court for another competency determination. The District Court found Michael

competent and referred the matter back to our Court. In June 2011, we held that any

alleged violation of former 21 U.S.C. § 848(q)(4)(B) was harmless and affirmed the

District Court’s order. Michael, 476 F. App’x at 281. The United States Supreme Court

denied certiorari in June 2012 and denied rehearing in August 2012.

         Michael’s execution was scheduled for November 8, 2012. On September 14,

2012, with Michael’s consent, attorneys from the Federal Community Defender Office

(FCDO), formerly the CHCU, were appointed to represent Michael. They filed a Fed. R.

Civ. P. 60(b)(6) motion on October 24, 2012 to reopen his habeas proceedings in the

District Court, arguing that his waiver of habeas review in 2002 was not voluntary.

Michael asserted that it was driven by the combination of intolerable prison conditions

and his then-undiagnosed Asperger’s Disorder. 2 The District Court denied the motion


1
    This subsection has been recodified at 18 U.S.C. § 3599(a)(2).
2
 Michaels’s expert, Dr. Donna Schwartz-Watts, explained that “[t]he essential features of
Asperger’s Disorder are severe and sustained impairment in social interaction, and the
development of restricted, repetitive patterns of behavior, interests and activities.”

                                               4
because it determined that it was actually a second or successive § 2254 petition. In the

alternative, it concluded that Michael had not shown extraordinary circumstances. The

District Court issued a certificate of appealability, and Michael filed a notice of appeal.

We stayed the execution pending the appeal. We have jurisdiction under 28 U.S.C.

§ 1291.

       Whether the Rule 60(b)(6) motion was a second or successive § 2254 petition

       Our review of this legal issue is plenary. Pridgen v. Shannon, 380 F.3d 721, 725

(3d Cir. 2004). In Gonzalez v. Crosby, 545 U.S. 524 (2005), the Supreme Court held that

a Rule 60(b) motion in a habeas case should be treated as a second or successive § 2254

petition if it advances a claim for habeas relief. The Court clarified that this “is not the

case, however, when a Rule 60(b) motion attacks, not the substance of the federal court’s

resolution of a claim on the merits, but some defect in the integrity of the federal habeas

proceedings.” Id. at 532. Here the District Court cited to a footnote from Gonzalez that

it read as excluding Michael’s waiver as a possible defect in the integrity of the habeas

proceedings: “[W]e note that an attack based on the movant’s own conduct, or his habeas

counsel’s omissions, . . . ordinarily does not go to the integrity of the proceedings, but in

effect asks for a second chance to have the merits determined favorably.” Id. at 532 n.5.

Michael, however, is not asking for a second chance to challenge the District Court’s

resolution of the merits of his claims, as the District Court has never reached the merits.

Rather he is asking to have the merits determined in the first instance.


                                              5
       The Commonwealth cites to language in an opinion by the Court of Appeals for

the Sixth Circuit to support its contention that Michael’s Rule 60(b) motion should be

considered a second or successive § 2254 petition: “[A]ll that matters is that Post is

‘seek[ing] vindication of’ or ‘advanc[ing]’ a claim by taking steps that lead inexorably to

a merits-based attack on the prior dismissal of his habeas petition.” Post v. Bradshaw,

422 F.3d 419, 424-25 (6th Cir. 2005). In that case the petitioner sought to reopen his

habeas case to pursue discovery that, although allowed by the court, counsel had not

performed. Read in isolation, the quoted language would make any Rule 60(b) motion in

a habeas case second or successive because the ultimate result the petitioner is seeking is

relief on the merits of his claims. However, in Post the petition had already been denied

on the merits; thus there was no procedural ruling that had prevented merits review. Post

was seeking, in effect, a second chance to have the merits of his claims determined

favorably.

       Our decision in Blystone v. Horn, 664 F.3d 397 (3d Cir. 2011), also cited by the

Commonwealth, is similarly distinguishable. There the petitioner sought to reopen the

proceedings to seek discovery to support claims that had already been denied as well as

potentially new claims. Id. at 409-10. He had already received merits review of his

original claims. Moreover, he brought his arguments in a timely Rule 59(e) motion that

we determined was not a second or successive § 2254 petition regardless whether it

advanced a claim for relief. Id. at 415.


                                             6
       Here the Rule 60(b)(6) motion is not a second or successive § 2254 petition.

Michael cannot be viewed as trying to relitigate the merits of his claims because, as

noted, the merits of his habeas claims have not yet been reviewed. The thrust of

Gonzalez is that a Rule 60(b) motion challenging a non-merits aspect of habeas

proceedings is not a second or successive § 2254 petition. With this background, we

conclude that the motion was properly brought under Rule 60(b)(6).

       Extraordinary Circumstances 3

       We review the District Court’s denial of a motion pursuant to Rule 60(b) for an

abuse of discretion. Jackson v. Danberg, 656 F.3d 157, 162 (3d Cir. 2011). Under Rule

60(b)(6), the District Court may relieve a party from a final judgment for any reason that

justifies relief. The standard for granting a Rule 60(b)(6) motion is a high one. The

movant must show “extraordinary circumstances” to justify reopening a final judgment.

Gonzalez, 545 U.S. at 536.

       [E]xtraordinary circumstances involve[] a showing that[,] without relief
       from the judgment, “an ‘extreme’ and ‘unexpected’ hardship will result.”
       This “hardship” requirement may sometimes be satisfied when the
       judgment “precluded an adjudication on the merits.” But extraordinary
       circumstances rarely exist when a party seeks relief from a judgment that
       resulted from the party’s deliberate choices.

Budget Blinds, Inc. v. White, 536 F.3d 244, 255 (3d Cir. 2008) (citations omitted).



3
 The parties dispute whether the Rule 60(b) motion was timely filed. Because we
conclude that Michael has not shown extraordinary circumstances warranting reopening,
we need not reach the issue of whether the Rule 60(b) motion was timely filed.

                                             7
       The District Court concluded that Michael had failed to establish grounds for Rule

60(b)(6) relief because changing one’s mind is not an extraordinary circumstance. He

argues that the District Court’s ruling was based on an incorrect assumption that a change

in mind can never be an extraordinary circumstance for Rule 60(b) purposes. He also

contends that the District Court failed to consider his arguments that he meets the

standard because: (1) there has never been merits review; (2) his claims raise significant

issues; (3) this is his first habeas petition; (4) this is a capital case; (5) relief is in the

public interest; (6) the motion was filed within a reasonable time; (7) there are

intervening equities; and (8) his waiver resulted from a combination of prison conditions

and a mental disorder.

       While the District Court did not explicitly discuss the factors cited by Michael, it

is clear from its description of the procedural history of the case that it was aware that

there had been no merits review of Michael’s first petition in his capital habeas

proceedings. The Court referenced the public interest factor when it stated that “[o]ver

nineteen years after the heinous murder that [Michael] has admitted committing, it is time

to draw this affair to a close.” It believed that the Rule 60(b) motion was timely filed. In

any event, it was aware of many of the factors Michael believes are relevant. 4



4
  In his reply brief, Michael argues two additional factors that make his circumstances
extraordinary: that he never had a trial and trial counsel stipulated to the death penalty.
However, the absence of a trial after a guilty plea is not extraordinary, and it was Michael
himself who chose to stipulate to the aggravating, and no mitigating, circumstances that
led to the imposition of the death penalty.
                                               8
       Michael emphasizes the importance of federal habeas review and argues that death

is different. He cites to two cases in which capital habeas petitioners received relief

pursuant to Rule 60(b)(6). However, the Courts in those cases did not grant relief based

simply on the litigants’ status as capital habeas petitioners. In each there were other

reasons justifying relief. See Thompson v. Bell, 580 F.3d 423, 433 (6th Cir. 2009); Ruiz

v. Quarterman, 504 F.3d 523, 525 (5th Cir. 2007).

              Change of Mind

       Michael argues that a change of mind alone can constitute an extraordinary

circumstance. However, the case he cites, Ungar v. Palestine Liberation Organization,

599 F.3d 79 (1st Cir. 2010), does not support that proposition. In Ungar, the District

Court had concluded that parties whose strategic choices led to the entry of a default

judgment were categorically barred from later obtaining relief pursuant to Rule 60(b)(6).

The Court of Appeals decided that relief was not categorically barred and remanded for

the District Court to reconsider the Rule 60(b)(6) motion. Notably, the Court stated:

“[L]et us be perfectly clear. We do not mean to minimize the gravity of a willful default

in calibrating the Rule 60(b)(6) balance. That factor weighs heavily.” Id. at 86. Thus,

the Court of Appeals did not hold that a change of mind alone can support Rule 60(b)

relief; rather, it determined that a change in mind was not the only factor to be

considered. Moreover, it observed that a willful default should weigh heavily. As noted

above, we have stated that extraordinary circumstances rarely exist when the judgment


                                              9
resulted from deliberate choices. Budget Blinds, Inc., 536 F.3d at 255. In addressing a

waiver of federal habeas review in state court in another capital case, we explained:

       We are in full agreement with the Commonwealth that if a defendant who
       has participated in a waiver proceeding is then allowed, without exception,
       to change his mind whenever he chooses, the doctrine of waiver will be
       rendered purposeless. Moreover, such an indulgence would be bad judicial
       policy resulting in frequent hearings and the expenditure of untold judicial
       resources.

Fahy v. Horn, 516 F.3d 169, 187 (3d Cir. 2008). Michael’s waiver was a deliberate

choice to discontinue his federal habeas proceedings that weighs heavily when

considering whether extraordinary circumstances exist to reopen the proceedings.

              Voluntariness of waiver

       Michael asserts that his waiver of federal habeas review resulted from the

combination of prison conditions and his Asperger’s disorder and thus was not voluntary.

The Supreme Court has explained that the purpose of the “‘knowing and voluntary’

inquiry . . . is to determine whether the defendant actually does understand the

significance and consequences of a particular decision and whether the decision is

uncoerced.” Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993) (citation omitted).

        In his 2002 report, the District Court’s expert, Dr. Wettstein, described the

conditions of Michael’s confinement:

       The conditions of his present confinement at SCI Graterford are typical of
       death row inmates in Pennsylvania, and there is no evidence of extreme
       sensory deprivation altering his decision-making capacity. He watches
       cable television in his cell for about eight hours daily, listens to the radio,
       uses the law library, reads magazines and newspapers provided by other
       inmates, and exercises religiously in and out of his cell. He receives mail
                                              10
      from his girlfriend and others, but refuses visitors. A blower vent provides
      ventilation to his cell, and the prison was at normal room-temperature
      during my visits. He did not specifically complain to me about the
      conditions of his confinement, and indicated on psychological testing that
      loneliness was his biggest problem.

Dr. Wettstein also noted Michael’s reasons for wanting to waive his habeas rights.

      He indicated that the death sentence represents a more just outcome with
      regard to the perspective of the victim and her family than a life sentence,
      and that “justice calls for the death penalty in my case.” He admitted to
      feeling guilt over committing the homicide but explained that that was not
      the only reason that he wished to be punished by execution. He admitted
      that he did not like the limbo and waiting as to whether or not the death
      sentence would be imposed. He stated that he had his attorneys represent
      him in the past in his appeals so that there would be no subsequent claims
      that he was not at those times represented by counsel . . . so as to further
      limit the issues to litigate.

      The question whether Michael’s unhappiness with his prison conditions played a

role in his decision to waive his habeas proceedings was discussed in the course of his

proceedings in the District Court. In its March 2004 memorandum, the District Court

quoted Dr. Wettstein’s testimony:

      His wish is not to remain on death row, because of quality of life issues,
      because he believes that the death penalty was appropriate in his case. So
      he wants to expedite the execution in his case. He does not wish to die,
      otherwise, he does not wish to remain for the rest of his life on death row or
      for the pendency of any appeals either.

The District Court noted that

      Mr. Michael has provided a rational explanation for his desire to
      discontinue this litigation: his approval of the death penalty as an
      appropriate punishment for murder, his admission that the murder of Ms.
      Eng qualifies for the death penalty, his feelings of remorse, and his
      dissatisfaction with the prospect of life in prison.

                                            11
It found that

       [t]here is no evidence in this case that the conditions of Mr. Michael’s
       death-row confinement are so harsh that his decision can be viewed as the
       product of coercion. Moreover, the decision has been consistently repeated
       to this Court over a number of years. It is thus not the product of
       uncontrollable impulsivity. . . . Mr. Michael’s decision “is not the result of
       an overborne will or the product of an impaired self-determination brought
       on by the exertion of any improper influences.” Comer [v. Stewart, 230 F.
       Supp. 2d 1016, 1071 (D. Ariz. 2002)].

Thus the District Court considered the possible effect of prison conditions on Michael’s

decision and found that they did not render it involuntary.

       Dr. Wettstein reevaluated Michael in 2007 after we remanded the matter for

another competency determination. In his report, he noted that Michael had been

transferred and liked SCI-Greene much better than SCI-Graterford because it was newer

and cleaner, had air conditioning, and was more tightly operated and controlled.

Dr. Wettstein attributed Michael’s changes of mind to his “obsessive compulsive

personality traits[,] including the need for control, impatience, difficulty trusting

attorneys, limited frustration tolerance, and guilt regarding the homicide.” He noted that

the “conditions of [Michael’s] confinement at Graterford with much inmate noise, dirt,

and administrative laxity may have also contributed to the vicissitudes of his decision

changes.” He also mentioned that Cosgrove had raised the possibility of Asperger’s

Disorder and concluded that it could not be excluded as a diagnosis. Dr. Wettstein

determined that Michael was still competent and that “his former decision to waive his

appeals—which he held from approximately 1999 through the setting of his execution

                                              12
date in 2004, and from November 2004 through March 2007”—did not reflect “decision-

making incapacity or the presence of a mental disorder at the time.” Thus, in 2007 Dr.

Wettstein acknowledged the possible influence of the prison conditions on Michael’s

change of mind but did not opine that they overwhelmed Michael to the extent that his

decision in 2004 was not voluntary.

       In 2012, Michael submitted an affidavit with his Rule 60(b)(6) motion from his

former attorney, Mr. Cosgrove, who stated that the prison conditions at SCI-Graterford

motivated Michael’s desire to waive his appeals; once Michael was moved to the better

conditions at SCI-Greene, his desire to litigate his petition did not waver. Cosgrove

stated that Michael had been seriously disturbed by the heat, loud noises, and harsh

lighting. He asserted that Michael can be very rigid and a minor departure from a rule or

routine can upset him more than it should. He suggested that each of Michael’s requests

to waive his appeals was sparked by a seemingly minor event that troubled Michael, e.g.,

being given dirty bed linens or learning that a goose he fed in the prison yard had been

killed by a fox.

       In an affidavit, Dr. Donna Schwartz-Watts, a psychiatrist, opined that Michael has

Asperger’s Disorder. 5 She believed that Michael’s disorder was the primary reason for


5
  Michael has also submitted a report from James Aiken, a prison expert, who discusses
Michael’s positive adjustment to prison. His opinion appears to contradict the basis of
the Asperger’s Disorder diagnosis.
      My in-person evaluation of Mr. Michael revealed a mature and candid
      individual. Mr. Michael’s ability to handle the often stressful prison
      environment was of great importance to me. Mr. Michael was able to
                                            13
his decision to waive habeas review:

       First, because he is unable to process his emotions, he experiences his remorse
       over killing his victim with equal pain every time he thinks about the crime he has
       committed. The pain remains fresh for him. Second, the conditions of his
       confinement at SCI-Graterford were intolerable to him. He found the prison
       unbearably dirty and the noise level unbearably loud. He felt there was no escape
       from the noise. Third, his inability to perceive social cues interfered with his
       ability to establish positive relationships with his counsel for many years and his
       counsel appears to have believed he was rude and uncooperative, unaware of the
       true nature of his cognitive impairments. Life for Mr. Michael was filled with
       painful remorse and, because of his disorder, his existence at Graterford was
       literally worse than death.

She concluded that “his decisions to waive—to escape his remorse and the intolerable (to

him) conditions in prison—lacked volition. His disability made his choices for him.”

       Thus, while Dr. Wettstein reported that Michael was able to watch TV, read, and

listen to the radio in his cell, and did not complain about his conditions of confinement,

Dr. Schwartz-Watts reported that Michael found the noise at Graterford unbearably loud

and the conditions of his confinement intolerable. 6 Dr. Schwartz-Watts believed that


        explain to me, in a calm and mature fashion, the coping skills that he has
        developed over the years of his incarceration. Age, maturity, and
        institutionalization have provided Mr. Michael with the skills to avoid and
        retreat from triggers that can lead to problems in a prison setting. Mr.
        Michael completely avoids engaging in discussions with other inmates
        dealing with politics, sports, or any potentially controversial subjects. He
        does not involve himself in the opinions of others. Simply put, he minds
        his own business and avoids problems.
While Dr. Schwartz-Watts saw Michael’s decision to isolate himself from other inmates
as a sign of social impairment that supports a diagnosis of Asperger’s Disorder, Aiken
saw it as a coping skill developed by a calm and mature inmate.
6
  We have no affidavit from Michael describing the conditions of his confinement or their
influence on him.
                                          14
Asperger’s Disorder along with the prison conditions were the cause of Michael’s waiver,

yet Dr. Wettstein believed that Michael’s waiver did not reflect the presence of any

mental disorder. The District Court resolved these disagreements in Dr. Wettstein’s favor

in concluding that Michael’s waiver was voluntary. We have no reason to revisit this

determination under Rule 60(b).

              Merits of the underlying habeas claims

       Michael argues that the merits of his habeas claims weigh in favor of equitable

relief. We disagree. At oral argument, Michael’s counsel conceded that the claims

challenging his conviction have little to no chance of success.

       Michael raises two claims challenging his death sentence. First, he argues that the

stipulation regarding the aggravating and no mitigating circumstances was false,

inaccurate, and prevented the sentencer from giving effect to mitigating evidence.

However, Michael’s guilty plea to the kidnapping charge established that the killing was

committed in perpetration of a felony, and his prior convictions for rape and attempted

armed robbery were sufficient to constitute a significant history of felonies involving

violence. See 42 Pa. Cons.Stat. § 9711(d)(6) & (9). Only one aggravating factor was

needed for Michael to be eligible for the death penalty. While there was certainly

evidence that could have been presented as mitigation, none of it constituted a mitigating

circumstance as a matter of law. See 42 Pa. Cons.Stat. § 9711(e). Thus the stipulation

regarding aggravating and no mitigating circumstances was not inaccurate or false. This

is not a situation where the sentencer was misled.
                                            15
       Michael contends that the stipulation precluded the sentencer from considering

and giving effect to the mitigating evidence. See Eddings v. Oklahoma, 455 U.S. 104,

113-14 (1982). He asserts that the trial court excluded all possible mitigation from its

consideration by accepting the “false” stipulation. However, it was Michael himself who

excluded any mitigating evidence from the sentencing court’s consideration. While he

contends that defense counsel, the prosecutor, and the trial court “arranged” the death

sentence, this argument ignores that his then-desire for the death penalty was the driving

force behind the stipulation.

       In his other sentencing claim, Michael argues that his trial counsel, Bruce Blocher,

was ineffective for failing to investigate and develop mitigating evidence and failing to

have Michael’s mental health evaluated for possible mitigation. He suggests that there

were several areas of mitigation, including his abusive childhood, attempted suicide,

extreme depression, mood swings and emotional instability, as well as mental and

emotional disturbances. However, Michael’s proposed mitigating evidence is not as

strong as he maintains, and it is not clear whether it would have been uncovered with a

reasonable investigation.

       While Michael’s sister Mary claimed that their father was abusive, his sister

Patricia and brother Boyd both denied that their father abused them or Michael. In his

2002 report, Dr. Wettstein noted that Michael “specifically denied that he had been

physically abused by his father.” Dr. Wettstein testified that


                                            16
       Mr. Michael’s view is that the sisters were—the sisters who allege that
       there had been abuse were trying to save his life in the present appeals
       process, and his view is that there was simply no such abuse. It may have
       not been a great relationship, but certainly wasn’t a physically violent
       relationship either.

 Thus it is questionable whether there was any abuse for counsel to uncover. Moreover,

counsel testified that he told the family that childhood abuse would be mitigating but did

not get much detail from them.

       As for the suicide attempt, it is unclear whether Michael’s overdose was a suicide

attempt—an escape attempt as Michael described it to Dr. Wettstein—or a manifestation

of a personality disorder (as one expert opined). With respect to Michael’s mental health

issues, the PCRA Court noted that Michael’s own expert indicated that Michael did not

have a diminished capacity at the time of the offense. Trial counsel related that Michael

made a conscious decision to kill the victim, understood what he was doing, weighed his

options, and aimed at a vital part of the body because he wanted to kill her humanely.

Michael’s sister Patricia denied telling PCRA counsel (the CHCU) that Michael had head

injuries, severe mood disturbances, behavioral manifestations, severe depression or

withdrawal. Michael argued that counsel failed to develop mitigating evidence of his

brain damage. However, as discussed below, the expert’s opinion that he had brain

damage was not persuasive.

       Michael also contends that counsel failed to advise him reasonably with respect to

his choice not to present mitigating evidence. Counsel testified that Michael expressed a

desire to receive the death penalty early on in the case. Counsel related that they had
                                            17
many discussions on the subject and that Michael was aware of the aggravating and

mitigating factors a sentencing jury would consider. For mitigation, counsel had

developed a strategy of showing that Michael had a normal life and behaved properly in

the community until his mother died and he pulled away from his family. Counsel

planned to highlight Michael’s family’s dynamic and his remorse for the crime as shown

by his guilty plea. He told Michael about the evidence he had assembled, but the latter

continued to say that he did not want evidence presented at sentencing. Co-counsel

Arlene Grabaukas testified that Michael was told that Commonwealth might not be able

to prove the aggravating circumstances and that he had mitigation to offer.

       As for prejudice, it is clear from the record that counsel’s mitigation investigation

and advice, or alleged lack thereof, were not factors in Michael’s refusal to present

mitigating evidence. See Taylor v. Horn, 504 F.3d 416, 455 (3d. Cir. 2007). 7 When the

sentencing court asked Michael to confirm counsel’s representations that they had

7
  Missing from Michael’s evidence is any testimony from him that he did not understand
what mitigation could have been presented and that he would have chosen to present
mitigating evidence if counsel had explained the possible mitigating evidence better.
When Michael did not testify at the PCRA hearing, the Court asked if counsel had
discussed with him that certain gaps would exist in the record as a result of his not
providing testimony. Counsel tried to sidestep the issue but the Court asked directly:
       Have you discussed with the Defendant what the standards are for Post
       Conviction Relief, what it requires, does he understand them and in your
       judgment making an informed decision not to give testimony based on the
       fact you carefully advised him what the necessities are or proof at this
       hearing, and what his testimony may be required for purposes of obtaining
       relief.
 Counsel indicated that the pros and cons of testifying were discussed extensively, and
they decided not to have Michael testify.

                                            18
discussed over an extended period of time Michael’s wish not to present mitigating

evidence, he stated that they had many discussions. At the PCRA hearing, counsel

testified that in November 1994, six months before sentencing, Michael wanted a

sentencing jury but did not want to present any mitigating evidence. Counsel asserted

that he expressed a desire to call witnesses at sentencing as late as March 1, 1995, but we

find nothing in the transcript from the hearing supporting that assertion. Counsel argued

for a sentencing jury from outside the county, and Michael agreed to discuss the potential

mitigating evidence and witnesses with counsel. He did not express a desire to call

witnesses. The trial court had to encourage Michael to cooperate with counsel with

respect to mitigation and allow counsel to speak with family members. At the District

Court hearing in 2002, Dr. Wettstein testified that Michael told him that it was at his

insistence that he pleaded guilty and waived sentencing. He told Dr. Wettstein that, if he

received a new trial, he would again plead guilty, stipulate to the aggravating factors, and

waive mitigating evidence.

       As noted above, Michael conceded at oral argument that the claims challenging

his conviction have little chance of success. We agree.

       Michael argues that there were significant indicia that a competency evaluation

was needed and that trial counsel was ineffective for failing to have him evaluated. 8 At


8
 In order to have been considered competent, Michael must have had “a sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding” and also “a rational as well as factual understanding of the proceedings
against him.” Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam).
                                             19
the PCRA hearing, Blocher testified that he believed Michael was competent based on

their discussions on how the criminal justice system works and how to pick a jury. He

asserted that Michael understood the nature of the trial, the function of a jury, and how

the proceeding would have two phases. Blocher stated that he would not have let

Michael plead guilty if he thought Michael was incompetent. Experts for both Michael

and the Commonwealth testified at the PCRA hearing regarding his competency. The

Commonwealth Court rejected the conclusion of one of Michael’s experts that he was

incompetent as “totally unsupported by the totality of the evidence.” After being told of

the details of Michael’s confession to trial counsel of what happened during the

homicide, another of Michael’s experts opined that Michael was not incompetent to stand

trial. The PCRA Court concluded that it would find Michael competent even if the

Commonwealth had to prove it beyond a reasonable doubt. 9 We note that Michael has

been found competent twice by Commonwealth Courts and twice by the District Court.

       Michael also alleges ineffective assistance of counsel with respect to his guilty

plea. First, he asserts that counsel never investigated the case, developed a theory of

defense, or investigated a mental health defense. Blocher testified at the PCRA hearing

that, when they first met in September 1993, Michael gave him a very detailed




9
  As additional proof of his competency, the PCRA Court pointed to Michael’s escape
from jail by impersonating another inmate as well as his participation in a separate trial
on a charge of rape.

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description of what had happened the day of the murder. 10 Blocher felt prepared for trial:

“[B]ased upon what he told us, there wasn’t a whole lot of witnesses to call on the factual

issues of the trial.” At the PCRA hearing, Blocher explained how he might have

challenged Boyd’s credibility. Co-counsel Grabaukas testified at the PCRA hearing that

the defense team was prepared to go forward and had reviewed the case and charges with

Michael at length. While Michael argues that counsel assumed that he had killed the

victim, he ignores the detailed confession he gave counsel at their first meeting.

       Michael contends as well that counsel did not investigate mental health defenses.

Blocher testified that there was nothing in Michael’s confession to him that indicated

Michael did not know what he was doing at the time of the murder, noted that Michael

made a conscious decision to kill the victim, understood what he was doing and weighed

his options, and aimed at a vital part of the body because he wanted to kill her humanely.

When the details of Michael’s confession were described to him, Michael’s own PCRA

expert concluded that Michael was not insane and did not suffer from diminished

capacity at the time of the offense.



10
  Blocher testified that Michael told him that he went to Trista Eng’s house to look at a
chair that was for sale and decided to rape her. After she asked him for a ride to work,
Michael took some electrical cord he found in order to tie her up. He drove a while,
pulled over, and tied her up. He told Eng he intended to rape her. After they drove some
more, they stopped. Michael untied her, and they had sex. Michael thought for some
time about whether he should kill her. He decided he had to kill her but wanted to do it
humanely by aiming at vital parts of her body. He shot her in the heart from the front and
then from the back after she fell forward. He then shot her in the head and dragged her
body into some bushes.
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       In July 1994, Michael told counsel that his first version of events was not true and

that his brother Boyd had lied about Michael’s confession. Michael asserts that counsel

rejected this second version of events without investigation and threatened to testify

against him. Blocher explained to Michael that, if he wanted to present that story, he

could testify but that Blocher could not ask him questions. Before trial, Michael changed

his position and did not want to present that version of events. Blocher denied that he

ever indicated that he would testify against Michael at trial if he got a new attorney and

presented the second version of events. As noted by the PCRA Court, Michael never

supported this claim with any testimony. While Michael implies that counsel threatened

to testify against him at trial, the citations he provides in support are two brief references

to testimony at a PCRA or disciplinary hearing.

       Finally, Michael claims that Blocher failed to advocate for him when he tried to

withdraw his guilty plea. However, he does not suggest what counsel should have argued

other than it would be “fair and just” to allow Michael to withdraw his plea.

       Conclusion

       Michael has not shown that the District Court abused its discretion in denying his

Rule 60(b)(6) motion. He has not demonstrated extraordinary circumstances justifying

reopening his habeas proceedings. It is not extraordinary that Michael did not receive

merits review of his first capital habeas petition after he knowingly and voluntarily

waived habeas review. His expert’s disagreement with Dr. Wettstein and the District


                                              22
Court regarding whether his waiver was voluntary is not an extraordinary circumstance.

The merits of his habeas claims do not weigh in favor of reopening the proceedings.

      For these reasons, we affirm the District Court’s judgment. The stay of execution

pending appeal entered November 8, 2012 is vacated.




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