                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-5-2006

Turner v. Dragovich
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3681




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Recommended Citation
"Turner v. Dragovich" (2006). 2006 Decisions. Paper 1789.
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                                                         NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                NO. 04-3681
                              ________________

                            WILLIAM D. TURNER,
                                            Appellant

                                       v.

          MARTIN L. DRAGOVICH; THE DISTRICT ATTORNEY
          OF THE COUNTY OF PHILA. MS. LYNNE ABRAHAM;
             ATTY GEN PA, THE ATTORNEY GENERAL OF
            THE STATE OF PENN. *MR. GERALD J. PAPPERT

                                            *Pursuant to F.R.A.P. 43(c)

                  ____________________________________

                 On Appeal From the United States District Court
                    For the Eastern District of Pennsylvania
                          (D.C. Civ. No. 99-cv-03975)
                 Chief District Judge: Honorable James T. Giles
                        __________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              December 15, 2005

       Before:   McKEE, FUENTES and NYGAARD, Circuit Judges

                             (Filed January 5, 2006)

                              _________________

                                  OPINION
                              _________________


PER CURIAM
       Appellant William D. Turner was convicted in 1981 of first degree murder and

possession of an instrument of crime, and sentenced to life in prison on the murder charge

plus an additional 2½-5 years imprisonment for the weapons offense. Turner’s direct

appeal was completed in 1983. It was followed by four separate state petitions for post-

conviction relief. The Pennsylvania Supreme Court denied Turner’s request for

allowance of appeal from the denial of his third petition on April 8, 1997. Turner’s fourth

state post-conviction petition was denied as untimely.1

       Turner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in

United States District Court for the Eastern District of Pennsylvania in August 1999. The

District Court dismissed the petition as untimely in July 2000, concluding that the one

year limitation period was not tolled while the untimely fourth state petition was pending.

That petition was not a “properly filed” petition under 28 U.S.C. § 2244(d)(2). In April

2002, we affirmed in Turner v. Dragovitch, C.A. No. 00-2348, pursuant to Artuz v.

Bennett, 531 U.S. 4 (2000). In Artuz, the United States Supreme Court held that an

application that contains procedurally barred claims is still properly filed “when its

delivery and acceptance are in compliance with the applicable laws and rules governing

filings,” including the time limits for filing. Id. at 8. The U.S. Supreme Court denied

Turner’s petition for a writ of certiorari.

       In December 2003, Turner filed a Rule 60(b) motion under subparagraphs (1) and

   1
     As we write primarily for the parties, and the District Court’s recitation of the
procedural history was thorough, we provide only this brief summary.

                                              2
(3), challenging the integrity of the habeas proceedings, and claiming a violation of due

process because his claim of actual innocence was ignored. He did not directly challenge

his conviction and sentence. In an order entered on August 9, 2004, the District Court

held that it could not consider the Rule 60(b) motion on the merits, because it was

untimely. It was filed more than 3 years after the habeas proceedings had concluded in

the district court. Fed. R. Civ. Pro. 60(b) (one year time limit for motions under

subparagraphs (1), (2), and (3)). The court went on to conclude that, in any event, Turner

had failed to demonstrate that there had been any mistake or fraud in the habeas

proceedings, or that exceptional circumstances justified reopening the judgment. A

timely motion for reconsideration was denied, and Turner appealed.

       Thereafter, the District Court granted a certificate of appealability with respect to

its construction of Rule 60(b). We appointed counsel, but counsel now seeks to withdraw

from this appeal on the ground that there are no non-frivolous arguments to be made on

Turner's behalf, and she has filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967). Appointment of counsel in a habeas proceeding is not constitutionally mandated,

however, and, accordingly, a motion to withdraw comporting with the requirements of

Anders is not necessary. See Pennsylvania v. Finley, 481 U.S. 551, 559 (1987). See also

18 U.S.C. § 3006A(a)(1). Nevertheless, we notified Turner of his counsel's motion and

gave him an opportunity to respond, which he did, and his response includes a motion for

appointment of new counsel. Having independently reviewed the Anders brief, Turner’s



                                              3
response and the entire record, we are satisfied that there is no basis for collateral relief in

this case, and thus grant counsel's motion and affirm. Turner’s motion for appointment of

new counsel is denied.2

         We have jurisdiction pursuant to 28 U.S.C. § 1291. Turner contends in his pro se

brief that the certificate of appealability was appropriately granted, because there were

Sixth Amendment violations at his trial, including trial counsel’s ineffective handling of

the Commonwealth’s use of false evidence to vouch for the credibility of its key witness.3

In addition, the original judgment that his habeas petition was untimely is null and void

under Gonzalez v. Crosby, 125 S. Ct. 2641 (U.S. 2005), a case decided after the District

Court granted the certificate of appealability.

         Appointed counsel argued in the Anders brief that reasonable jurists could not

disagree, Miller-El v. Cockrell, 537 U.S. 322, 338 (2003), that the Rule 60(b) motion was

untimely. We agree with Turner, however, that the certificate of appealability was not

improvidently granted. The questions raised by Rule 60(b) motions filed in the context of

habeas proceedings were substantial and unresolved when the District Court ruled on

Turner’s Rule 60(b) motion. After the District Court ruled, we decided Pridgen v.

Shannon, 380 F.3d 721, 727 (3d Cir. 2004), cert. denied, 125 S. Ct. 1298 (2005), holding

that a Rule 60(b) motion may be adjudicated on the merits when the factual predicate of


   2
       Turner has demonstrated that he is capable of, and desires to, argue his own case.
   3
   Turner alleged that eyewitness Ella Martin lied about her employment at Horizon
House, and thus was not a credible witness in any respect.

                                               4
the motion attacks the manner in which an earlier habeas judgment was procured, and not

the underlying conviction. Prior to Pridgen, that issue was unresolved in this circuit.

       Although the issue in Turner’s case was whether, if properly construed as a true

Rule 60(b) motion, Turner’s December 2003 filing was untimely, the question of the

proper construction of his filing, that is, whether it was an impermissible successive

habeas petition, was at issue. Because there was a substantial procedural issue decided

adversely to Turner, and the case involved a valid claim of the denial of a constitutional

right, Slack v. McDaniel, 529 U.S. 473, 484 (2000), the District Court did not err in

granting the certificate of appealability.

       We nonetheless affirm. The District Court properly construed the motion as

arising under Rule 60(b). In Gonzalez v. Crosby, 125 S. Ct. 2641, the Supreme Court

held that a motion for relief from judgment, such as Turner’s, which challenges only the

District Court’s prior ruling that the habeas petition was time-barred, is not the equivalent

of a second or successive habeas petition, and may be considered under Rule 60(b). Id. at

2648.4 This necessarily means that the time requirements of the rule apply. Id. at 2649.

       Rule 60(b) provides in pertinent part, that: “On motion and upon such terms as are

just, the court may relieve a party ... from a final judgment, order, or proceeding for the

following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... [or] (3)

   4
     The Supreme Court, while leaving the issue open, did not disapprove of the practice
of requiring a certificate of appealability as a prerequisite to appealing the denial of a
Rule 60(b) motion, calling it a “plausible and effective screening requirement.” 125 S.
Ct. at 2650 n.7.

                                              5
fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other

misconduct of an adverse party.” Fed. R. Civ. Pro. 60(b). The rule further provides that:

“The motion shall be made ... for reasons (1) [and] (3) not more than one year after the

judgment, order, or proceeding was entered or taken.” Id. Turner’s Rule 60(b) motion,

insofar as he sought to bring it under subparagraphs (1) and (3), was plainly out of time,

as explained by the District Court.

       Moreover, the District Court did not err in concluding that no extraordinary

circumstances existed for reopening Turner’s habeas case. We previously decided that,

under Artuz, Turner’s habeas petition was untimely. Even if this ruling had been

incorrect (and it was not, see Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (U.S. 2005)), a

motion under Rule 60(b)(6) can only be granted in extraordinary circumstances. In

Gonzalez, the Supreme Court considered whether its decision in Artuz, even assuming

that it rendered the district court’s previous untimeliness ruling incorrect, was not an

extraordinary circumstance justifying reopening the habeas judgment. Artuz does not

justify “reopening long-ago dismissals based on a lower court’s unduly parsimonious

interpretation of § 2244(d)(2)....” Gonzalez, 125 S. Ct. at 2650.

       The Supreme Court further reasoned that the petitioner’s lack of diligence in

pursuing his statute of limitations argument was a contributing factor in determining

whether extraordinary circumstances existed. Id. at 2651. Here, Turner’s lack of

diligence in pursuing his innocence argument similarly renders his case “all the less



                                              6
extraordinary.” Id. Furthermore, even if a showing of actual innocence could trigger

equitable tolling, Turner would have to support his allegations with new reliable and

probative evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 327

(1995). His unsupported statement fails to satisfy this standard, further establishing an

absence of extraordinary circumstances.

       We will grant counsel's motion to withdraw and affirm the judgment of the District

Court. Turner’s motion for appointment of new counsel is denied.
