                                    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
