New opinion: Third Circuit issues a major (and I think incorrect) habeas ruling

Orie v. District Attorney—habeas corpus—affirmance—Jordan

The Third Circuit today held that 28 USC § 2254(i) bars federal courts from granting relief under Fed. R. Civ. P. 60(b) when a lawyer’s error causes a petitioner to file objections to a magistrate judge’s report and recommendation after the deadline:

Janine’s arguments fail in light of a clear statutory directive . . . . The governing habeas statute, 28 U.S.C. § 2254, states plainly that “[t]he ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.” 28 U.S.C. § 2254(i). Thus, motions under Rule 60(b) that seek relief based on “incompetent and ineffective representation” during a proceeding under § 2254 are barred. Post v. Bradshaw, 422 F.3d 419, 423 (6th Cir. 2005) (quoting 28 U.S.C. § 2254(i)). Though couched in terms of excusable neglect, Janine’s plea that we ignore her attorney’s (and hence her) failure to timely respond to the R&R is exactly the kind of relief foreclosed by the statute itself.

It’s always possible I’m missing something, but I believe this reasoning is incorrect. “Ground for relief” as used in § 2254(i) means a ground for habeas relief, a substantive basis for vacating the conviction or sentence. It doesn’t mean that an attorney’s error can’t be the basis for overcoming a procedural barrier to relief. The Supreme Court held as much in Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012):

Arizona contends that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, bars Martinez from asserting attorney error as cause for a procedural default. AEDPA refers to attorney error in collateral proceedings, but it does not speak to the question presented in this case. Section 2254(i) provides that “the ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief.” “Cause,” however, is not synonymous with “a ground for relief.” A finding of cause and prejudice does not entitle the prisoner to habeas relief. It merely allows a federal court to consider the merits of a claim that otherwise would have been procedurally defaulted. In this case, for example, Martinez’s “ground for relief” is his ineffective-assistance-of-trial-counsel claim, a claim that AEDPA does not bar. Martinez relies on the ineffectiveness of his postconviction attorney to excuse his failure to comply with Arizona’s procedural rules, not as an independent basis for overturning his conviction. In short, while § 2254(i) precludes Martinez from relying on the ineffectiveness of his postconviction attorney as a “ground for relief,” it does not stop Martinez from using it to establish “cause.” Holland v. Florida, 560 U.S. ___, ___, 130 S.Ct. 2549, 2563, 177 L.Ed.2d 130 (2010).

Today’s opinion does not cite Martinez or Holland. In my view, the opinion’s reasoning is incorrect and rehearing is warranted.

The court also holds that 60(b) relief is barred by its prior decision in Nara v. Frank, 488 F.3d 187 (3d Cir. 2007), that its own review of the R&R was for plain error only, and that the R&R’s reasoning wasn’t plainly erroneous.

Joining Jordan were Bibas and Matey. Arguing counsel were James DePasqulale of Pittsburgh for the petitioner and Ronald Wabby of the Allegheny County D.A.’s office for the Commonwealth.