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Delvalle v. Morton
United States District Court, D. New Jersey
March 9, 2018
ERNESTO DELVALLE, Petitioner,
WILLIS MORTON, et al., Respondents.
D. WIGENTON, UNITED STATES DISTRICT JUDGE.
1. On or about April 30, 1996, Petitioner, Ernesto Delvalle,
filed a petition for a writ of habeas corpus challenging his
1990 state court conviction.
2. On August 8, 1996, Judge Barry dismissed that petition.
(ECF No. 7). Petitioner contends that this dismissal occurred
because his petition was a second or successive habeas
petition brought without leave of the Court of Appeals
because Petitioner had a previous habeas petition dismissed
in 1995. (See ECF No. 12 at 1).
3. Almost eighteen years later, Petitioner filed a motion
with the Court seeking relief from the dismissal of his 1996
habeas petition pursuant to Rule 60(b) of the Federal Rules
of Civil Procedure. (ECF No. 8). In that motion, Petitioner
stated his intent to raise a claim under Alleyne v.
United States, 570 U.S. 99 (2013), which Petitioner
mistakenly believed would be retroactively applicable to his
conviction. (Id. at 1-2). Petitioner's motion
also contained approximately twenty additional pages in which
he presented excerpts from various cases on the AEDPA statute
of limitations applicable to § 2254 habeas petitions and
the procedural default doctrine, presumably in an attempt to
show that his Alleyne claim should not be barred by
either the limitations period or default doctrine.
(Id. at 3-23). Petitioner also mentioned in his
letter that he believed he suffered ineffective assistance of
both trial and PCR counsel, but does not explain or provide
the factual basis for either claim, and it is not clear
whether these claims were part of his original petition or
also represent new claims he wished to bring in 2014.
4. On April 14, 2014, Judge Hochberg entered an order denying
Petitioner's Rule 60(b) as Alleyne had been held
not to be retroactively applicable and Petitioner had not
clearly presented any other basis for relief from the
Court's dismissal of his habeas petition in his motion.
(ECF No. 10).
5. Over three and a half years later, on or about January 11,
2018, Petitioner filed with the Court a second Rule 60(b)
motion. (ECF No. 12). This “new” motion is, in
for all practical purposes identical to the Rule 60(b) motion
that Judge Hochberg denied in 2014. (Id.).
6. “Rule 60(b) allows a party to seek relief from a
final judgment, and request reopening of his case, under a
limited set of circumstances including fraud, mistake, and
newly discovered evidence.” Gonzalez v.
Crosby, 545 U.S. 524, 529 (2005). “The remedy
provided by Rule 60(b) is extraordinary, and special
circumstances must justify granting relief under it.”
Jones v. Citigroup, Inc., Civil Action No. 14-6547,
2015 WL 3385938, at *3 (D.N.J. May 26, 2015) (quoting
Moolenaar v. Gov't of the Virgin Islands, 822
F.3d 1342, 1346 (3d Cir. 1987). While Rules 60(b)(1)-(5)
permit reopening a judgment for specific, enumerated reasons
including fraud or mistake, Rule 60(b)(6) permits a party to
seek relief form 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.” Michael v.
Wetzel, 570 F. App'x 176, 180 (3d Cir. 2014)
(quoting Gonzalez, 545 U.S. at 536). “[A]
showing of extraordinary circumstances involves a showing
that without relief from the judgment, ‘an
“extreme” and “unexpected” hardship
will result.'” Budget Blinds, Inc. v.
White, 536 F.3d 244, 255 (3d Cir. 2008) (quoting
Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir.
7. Motions for relief from a final judgment brought pursuant
to Rule 60(b) must also be filed within a “reasonable
time” of the entry of the original judgment.
Fed.R.Civ.P. 60(c). What is reasonable in a given case
depends on the circumstances of that case, and a
determination of reasonableness rests on factors such as
“finality, the reason for delay, the practical ability
of the litigant to learn of the grounds relied upon earlier,
and potential prejudice to other parties.” See In
Re Diet Drugs(Phentermine/Fenfluramine/Dexfenfluramine)
Product Liability Litigation), 383 F. App'x 242, 246
(3d Cir. 2010). Indeed, Rule 60 motions based on fraud,
mistake, or newly discovered evidence must be filed within a
year of the entry of judgment, and the Third Circuit has
found that a delay as short as a year can be sufficient to
render the filing of a Rule 60 motion untimely where the
interests of finality and the potential for prejudice so
warrant. See Fed. R. Civ. P. 60(c)(1); In Re
Diet Drugs, 383 F. App'x at 246.
8. In this matter, Petitioner filed his initial Rule 60(b)
motion eighteen years after his petition had been dismissed,
and then filed his second Rule 60(b) motion three and a half
years after his first such motion was denied. By any stretch
of the imagination, the delay of well over two decades
between the order Petitioner challenges, the dismissal of his
habeas petition in 1996, and the filing of his current Rule
60(b) motion fails to constitute a “reasonable
time.” To the extent that Petitioner's current
filing is, indeed, a Rule 60(b) motion and not a successive
habeas petition in disguise, his motion is well and truly
time barred and must be denied as untimely filed.
9. In both of his Rule 60(b) motions, however, Petitioner
raised at least one new claim not raised in his previously
dismissed habeas petitions - his Alleyne claim. As
the Supreme Court explained in Gonzalez, habeas
petitioners may not file a second or successive habeas
petition in the district court without first obtaining leave
from the Court of appeals. 545 U.S. at 530. In
Gonzalez, the Court further explained that where a
filing presented as a Rule 60(b) motion contains a new claim
for relief not presented in the original petition, such as a
claim based on a claim based on “a subsequent change in
substantive law” or a new rule of constitutional law
made retroactive on collateral review, that motion is, in
fact, a second or successive habeas petition which must be
dismissed by the District Court unless the Petitioner has
secured leave of the Court of Appeals. Id. at
530-531. Because Petitioner's Rule 60(b) motions contain
at least one claim not contained in his prior
petition - the Alleyne claim - his Rule 60(b) motion
is also subject to dismissal because his motion is in
actuality a second or successive habeas petition and
Petitioner has not secured leave from the Court of Appeals.
Petitioner's motion must therefore also be dismissed for
lack of jurisdiction because it is a successive habeas
petition brought without leave of the Court of
11. In conclusion, Petitioner's motion is DENIED as
untimely filed to the extent it is a Rule 60(b) motion, and
is DISMISSED for lack of jurisdiction to the extent it is in
fact a second or successive habeas petition brought without
leave of the Court of Appeals. An appropriate order follows.
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