2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-7-2014

Jermont Cox v. Martin Horn

Precedential or Non-Precedential: Precedential

Docket No. 13-2982

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 13-2982

_____________

JERMONT COX,

 Appellant

v.

MARTIN HORN; CONNOR BLAINE; 

THE DISTRICT ATTORNEY

OF THE COUNTY OF PHILADELPHIA; 

THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE 

EASTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 2-00-cv-05188)

District Judge: Honorable Anita B. Brody

____________

Argued: June 12, 2014

____________

Before: AMBRO and BARRY, Circuit Judges, and 

RESTANI,*Judge

(Opinion Filed: August 7, 2014)

____________

Stuart B. Lev, Esq. (Argued)

Federal Community Defender Office for the Eastern District 

of Pennsylvania

 

* Honorable Jane A. Restani, Judge, United States Court of 

International Trade, sitting by designation.
2

Capital Habeas Unit

601 Walnut Street

The Curtis Center, Suite 545 West

Philadelphia, PA 19106

Counsel for Appellant

Molly S. Lorber, Esq. (Argued)

Thomas W. Dolgenos, Esq.

Helen Kane, Esq.

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees

____________

OPINION OF THE COURT

____________

BARRY, Circuit Judge

More than twenty years ago, Jermont Cox was 

convicted in the Court of Common Pleas of Philadelphia 

County of first-degree murder and related charges. In 2000, 

he filed a petition in the U.S. District Court for a writ of 

habeas corpus. The District Court dismissed the petition in 

2004, finding that all but one of Cox’s claims were 

procedurally defaulted due to counsel’s failure to pursue them 

in Cox’s initial-review post-conviction proceeding in state 

court and that the one preserved claim lacked merit. We 

affirmed. In 2012, the Supreme Court of the United States 

decided Martinez v. Ryan, 132 S. Ct. 1309 (2012), which 

announced an exception to longstanding precedent and found 

that, under certain circumstances, and for purposes of habeas 

review, post-conviction counsel’s failure to raise ineffective 

assistance of trial counsel claims could excuse a procedural 

default of those claims. Within three months of that decision, 

Cox filed a motion under Rule 60(b)(6) of the Federal Rules 

of Civil Procedure for relief from the 2004 order dismissing 

his habeas petition. The District Court denied the motion, 

finding that the intervening change in law occasioned by 
3

Martinez, “without more,” did not provide cause for relief.

We agree that, for relief to be granted under Rule 

60(b)(6), “more” than the concededly important change of 

law wrought by Martinez is required—indeed, much “more” 

is required. Ultimately, as with any motion for 60(b)(6) 

relief, what must be shown are “extraordinary circumstances 

where, without such relief, an extreme and unexpected 

hardship would occur.” Sawka v. Healtheast, Inc., 989 F.2d 

138, 140 (3d Cir. 1993); accord Budget Blinds, Inc. v. White, 

536 F.3d 244, 255 (3d Cir. 2008). But what those 

extraordinary circumstances would—or could—be in the 

context of Martinez was neither offered to the District Court 

by the parties nor discussed by the Court, although, to be 

sure, at that point there had been little post-Martinez case law 

to inform any such discussion.

We will vacate the order of the District Court and 

remand to provide the Court the opportunity to consider 

Cox’s Rule 60(b)(6) motion with the benefit of whatever 

guidance it may glean from this Opinion and from any 

additional briefing it may order. We note at the outset that 

one of the critical factors in the equitable and case-dependent 

nature of the 60(b)(6) analysis on which we now embark is 

whether the 60(b)(6) motion under review was brought within 

a reasonable time of the Martinez decision. See Fed. R. Civ. 

P. 60(c)(1). It is not disputed that the timing of the 60(b)(6) 

motion before us—filed, as it was, roughly ninety days after 

Martinez—is close enough to that decision to be deemed 

reasonable. Still, though not an issue before us, it is 

important that we acknowledge—and, indeed, we warn—that, 

unless a petitioner’s motion for 60(b)(6) relief based on 

Martinez was brought within a reasonable time of that 

decision, the motion will fail.

I. PROCEDURAL HISTORY

Recognizing that more than twenty years of procedural 

history has brought us to this point, it is, nonetheless, 

important that that history be recounted. We will attempt to 

be succinct, if not laserlike, in our recitation.

On October 28, 1993, following a bench trial before 
4

the Hon. Carolyn Engel Temin of the Court of Common Pleas

of Philadelphia County, Cox was convicted of first-degree 

murder, criminal conspiracy, and possession of an instrument 

of crime in connection with the July 19, 1992 shooting death 

of Lawrence Davis, and was sentenced to life imprisonment.

In a statement he gave to the police at the time of his 

arrest, Cox confessed to shooting Davis, but said that the 

shooting had been accidental. He and a friend, Larry Lee, he 

said, had gone to a drug house operated by Lee. While they 

were outside drinking, Lee got into a dispute with Davis that 

escalated into a physical altercation. At some point, Lee 

handed Cox a gun that was already cocked. Cox shot twice, 

hitting Davis, and then handed the gun back to Lee. 

According to Cox, he later told family members that the 

shooting had been an accident.

To prove at trial that Cox had the requisite intent for 

first-degree murder, the Commonwealth presented the 

testimony of Kimberly Little, an eyewitness. Little testified 

that Cox and Lee worked for a drug organization that was run 

out of an apartment in her building: Cox was a “lookout” and 

Lee supplied the operation’s drugs. (A. 31.) On the night of 

Davis’ death, Little saw from her window an argument erupt 

between Davis and Lee. According to Little, Cox then exited 

a local bar with a six-pack of beer, approached the two men, 

placed the six-pack on the hood of Lee’s nearby car, retrieved 

a gun from the car, walked to within four feet of Davis, and 

shot him three times. Cox stopped to drink a beer, and he and 

Lee left in Lee’s car.

The Commonwealth’s other witnesses were Kimberly 

Little’s sister, Mary Little; the medical examiner; and a 

ballistics expert. Mary Little confirmed that Cox and Lee 

were neighborhood drug dealers and that she saw them drive 

off together after the shooting. The medical examiner 

asserted that Davis had four wounds caused by at least three 

bullets, and the ballistics expert explained that it was unlikely 

the shooting was accidental given the number of shots fired.

Trial counsel filed post-verdict motions on Cox’s 

behalf. Cox also filed a motion pro se alleging trial counsel’s 
5

ineffectiveness and requesting the appointment of new 

counsel. In February of 1994, Judge Temin held a hearing on 

the post-verdict motions. At the hearing, Cox testified in 

support of his pro se motion and outlined trial counsel’s 

alleged failings: trial counsel (1) failed to present testimony 

from various character witnesses; (2) failed to find a witness, 

identified by Cox, who would have testified that “guys from 

the neighborhood” forced Kimberly Little to give a false 

statement to the police, (S.A. 47); (3) failed to review 

paperwork that Cox provided him; and (4) dissuaded Cox 

from taking the stand in his own defense. In response, trial

counsel stated that he found himself in “a very untenable 

position” and asked that he be permitted to withdraw. (S.A. 

59.) Judge Temin denied the request as well as the pro se 

motion, finding Cox’s claims of ineffectiveness to lack merit. 

She later denied the counseled post-verdict motions.

Cox, still represented by trial counsel, appealed his 

conviction, challenging the sufficiency of the evidence and 

the admission of evidence relating to uncharged drug activity. 

In June of 1995, the Pennsylvania Superior Court affirmed 

the judgment of sentence. Cox then filed a pro se petition for 

allocatur in the Pennsylvania Supreme Court, raising claims 

of trial counsel’s ineffective assistance at the trial and on 

appeal. New counsel was appointed for Cox and submitted a 

supplemental allocatur petition. The Supreme Court denied 

allocatur in April of 1996.1

 

1 By that time, Cox had also been convicted of the 

1992 first-degree murders of Roosevelt Watson and Terence 

Stewart, both of whom he aided Lee in killing. Cox was 

sentenced to life imprisonment for the murder of Watson and 

death for the murder of Stewart. His conviction for 

murdering Davis was found to be an aggravating factor in 

support of his capital sentence. See Commonwealth v. Cox, 

983 A.2d 666, 673-75 (Pa. 2009). Those convictions have 

spawned federal habeas proceedings that are before the 

District Court, and Cox has filed new PCRA petitions 

challenging his convictions on all three murders on the basis 

of new ballistics evidence. His habeas petitions relating to 

the Watson and Stewart cases have been stayed pending those 

PCRA proceedings.
6

The following month, Cox filed a pro se petition under 

Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. 

Cons. Stat. Ann. §§ 9541-9546. The attorney who had 

represented Cox in his petition to the Pennsylvania Supreme 

Court was again appointed to represent Cox in his collateral 

review proceeding under PCRA. Counsel filed an amended 

PCRA petition asserting claims of ineffective assistance of 

trial counsel.2 Judge Temin, sitting as the PCRA court, held a 

hearing at which PCRA counsel chose to proceed on only one 

of the multiple claims of trial counsel’s ineffectiveness: 

failure to impeach the Littles with their criminal records and 

motive to curry favor with the Commonwealth to gain 

leniency in their own cases.

On August 28, 1998, Judge Temin denied postconviction relief, finding that Cox had not been prejudiced by 

trial counsel’s failure to impeach Kimberly and Mary Little 

with their criminal records because evidence aside from their 

testimony established his guilt. The Superior Court affirmed 

in July of 1999 and the Supreme Court denied allocatur in 

December of that year. Cox filed a second PCRA petition pro 

se, alleging ineffective assistance claims against trial and 

PCRA counsel. Judge Temin dismissed the petition as 

untimely, and the Superior Court affirmed after Cox failed to 

file a brief.

In October of 2000, Cox, now represented by the 

Federal Defender, filed a petition for a writ of habeas corpus 

in the U.S. District Court. The petition raised eight grounds 

for relief: (1) six claims of ineffective assistance of trial 

 

2 The counseled PCRA petition claimed that trial 

counsel had provided constitutionally deficient representation 

when he failed to impeach the Little sisters with (1) the fact 

that they had charges pending against them when they first 

gave statements to the police, were eventually convicted of 

lesser charges, and were on probation at the time of trial; (2) 

their alleged familial relationship to the murder victim, Davis; 

and (3) a prior inconsistent statement by Kimberly Little. 

Trial counsel was also allegedly deficient for failing to 

present evidence of Cox’s lawful employment.
7

counsel; (2) one violation of Brady v. Maryland, 373 U.S. 83 

(1963); and (3) a claim of cumulative error. In July of 2003, 

a magistrate judge issued a report and recommendation 

(“R&R”) in which he determined that the ineffective 

assistance claims abandoned by PCRA counsel before the 

PCRA court, as well as the Brady and cumulative error 

claims, were procedurally defaulted. He reviewed the 

remaining claim of ineffective assistance—trial counsel’s 

failure to impeach the Littles with their criminal records—and 

concluded that the Superior Court’s decision rejecting that 

claim was neither “contrary to” nor an “unreasonable 

application” of established federal law. (A. 44-47 (quoting 28 

U.S.C. § 2254(d)(1)).) Cox filed objections to the R&R, 

arguing that PCRA counsel’s unilateral decision to abandon 

claims constituted cause to overcome the procedural default 

bar. In August of 2004, the District Court rejected Cox’s 

objections, adopted the R&R, and dismissed the habeas 

petition.3 We affirmed on appeal. Cox v. Horn, 174 F. App’x

84 (3d Cir. 2006).

Six years later, on June 20, 2012, Cox filed a motion 

pursuant to Federal Rule of Civil Procedure 60(b)(6) seeking 

relief from the District Court’s order of dismissal due to the 

intervening change in procedural law occasioned by the 

March 20, 2012 decision of the Supreme Court of the United 

States in Martinez v. Ryan. The Court held in Martinez that, 

under certain circumstances, error by post-conviction counsel 

can constitute cause to overcome the procedural default of 

 

3 The District Court granted a certificate of 

appealability on two issues: (1) whether the Superior Court’s 

resolution of Cox’s ineffective assistance of counsel claim, 

based on trial counsel’s failure to impeach Kimberly Little 

with evidence of her criminal record, “resulted in a decision 

that was contrary to, or involved an unreasonable application 

of, clearly established federal law” and (2) “whether the 

Superior Court’s failure to remand to the trial court to 

conduct a hearing to determine whether [Cox] wanted to 

proceed pro se or with counsel establishe[d] cause to 

overcome a procedural default” of his other claims. Cox v. 

Horn, No. 00-5188 (E.D. Pa. Aug. 11, 2004) (order granting 

certificate of appealability).
8

claims alleging trial counsel’s ineffective assistance. Cox 

argued that it was only due to PCRA counsel’s ineffective 

assistance at the initial PCRA proceeding that his claims of 

ineffectiveness against trial counsel had been abandoned and 

were now procedurally defaulted.

On May 23, 2013, the District Court denied Cox’s 

motion, finding that “Martinez’s change of law, without 

more,” was not cause for relief. (A. 5.) In a separate July 2, 

2013 order, the District Court issued a certificate of 

appealability on the “legal question” of “whether the change 

in law resulting from Martinez constitutes extraordinary 

circumstances that would warrant relief” under Rule 60(b)(6). 

(A. 6.)

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 28 

U.S.C. §§ 2241 and 2254. We have appellate jurisdiction 

pursuant to 28 U.S.C. §§ 1291 and 2253.

We review for abuse of discretion a district court’s 

denial of a motion under Rule 60(b)(6). 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. Morris v. 

Horn, 187 F.3d 333, 341 (3d Cir. 1999).

III. ANALYSIS

A. The Martinez Rule

When reviewing a state prisoner’s petition for a writ of 

habeas corpus, a federal court normally cannot review a 

federal claim for post-conviction relief that has already been 

rejected by a state court on the basis of an independent and 

adequate state procedural rule. Walker v. Martin, 131 S. Ct. 

1120, 1127 (2011); Coleman v. Thompson, 501 U.S. 722, 750 

(1991). A petitioner may obtain federal review of a 

procedurally defaulted claim, however, if he demonstrates 

cause for the default and prejudice arising from the violation 
9

of federal law. Martinez, 132 S. Ct. at 1316 (citing Coleman, 

501 U.S. at 750).

When Cox’s habeas petition was initially under review 

by the District Court, the governing rule, as recognized in 

Coleman, was that error by counsel in state post-conviction 

proceedings could not serve as “cause” sufficient to excuse 

procedural default of a petitioner’s claim. See Coleman, 501 

U.S. at 752-54; Sweger v. Chesney, 294 F.3d 506, 522 & n.16 

(3d Cir. 2002). The Supreme Court carved out a significant 

exception to that rule nearly eight years after Cox’s petition 

was denied when, in 2012, it decided Martinez.

In Martinez, the Supreme Court held that, where state 

law requires a prisoner to raise claims of ineffective 

assistance of trial counsel in a collateral proceeding, rather 

than on direct review, a procedural default of those claims 

will not bar their review by a federal habeas court if three 

conditions are met: (a) the default was caused by ineffective 

assistance of post-conviction counsel or the absence of 

counsel (b) in the initial-review collateral proceeding (i.e., the 

first collateral proceeding in which the claim could be heard) 

and (c) the underlying claim of trial counsel ineffectiveness is

“substantial,” meaning “the claim has some merit,” analogous 

to the substantiality requirement for a certificate of 

appealability. Martinez, 132 S. Ct. at 1318-20. The Court 

adopted this “equitable ruling” for several reasons. Id. at 

1319. First, “[t]he right to the effective assistance of counsel 

at trial is a bedrock principle in our justice system” vital to 

ensuring the fairness of an adversarial trial. Id. at 1317. 

Second, a prisoner cannot realistically vindicate that right 

through a claim of ineffective assistance of trial counsel 

without “an effective attorney” to aid in the investigation and 

presentation of the claim. Id. Finally, if the lack of effective 

counsel in an initial-review collateral proceeding could not 

excuse the federal procedural default bar, no court—state or 

federal—would ever review the defendant’s ineffective 

assistance claims, given that they were first brought in that 

collateral proceeding. Id. at 1316.

The majority in Martinez noted that it was 

propounding a “narrow,” id. at 1315, “limited qualification” 
10

to Coleman, id. at 1319. Even so, what the Court did was 

significant. See, e.g., id. at 1327 (Scalia, J., dissenting) 

(criticizing Martinez as “a radical alteration of . . . habeas 

jurisprudence”); Lopez v. Ryan, 678 F.3d 1131, 1136 (9th Cir. 

2012) (“Martinez constitutes a remarkable—if ‘limited,’—

development in the Court’s equitable jurisprudence.” (citation 

omitted)).

In Trevino v. Thaler, 133 S. Ct. 1911 (2013), issued 

the following Term, the Supreme Court clarified that the 

Martinez rule applied not only to states that expressly denied 

permission to raise ineffective assistance claims on direct 

appeal (such as Arizona, which Martinez addressed), but also 

to states in which it was “virtually impossible,” as a practical 

matter, to assert an ineffective assistance claim before 

collateral review. Id. at 1915 (quotation marks omitted). 

Texas law, at issue in Trevino, ostensibly permitted (though it 

did not require) criminal defendants to raise ineffective 

assistance of trial counsel claims on direct appeal. In 

practice, however, Texas’ criminal justice system “[did] not 

offer most defendants a meaningful opportunity” to do so. Id. 

at 1921. As the Texas courts themselves had observed, trial 

records often lacked information necessary to substantiate 

ineffective assistance of trial counsel claims, and motion 

filing deadlines, coupled with the lack of readily available 

transcripts, generally precluded raising an ineffective 

assistance claim in a post-trial motion. Moreover, the Texas 

courts had invited, and even directed, defendants to wait to 

pursue such claims until collateral review. The Court 

“conclude[d] that where, as [in Texas], state procedural 

framework, by reason of its design and operation, makes it 

highly unlikely in a typical case that a defendant will have a 

meaningful opportunity to raise a claim of ineffective 

assistance of trial counsel on direct appeal, [the] holding in 

Martinez applies.” Id.

B. Cox’s Rule 60(b)(6) Motion

Rule 60(b)(6) is a catch-all provision that authorizes a 

court to grant relief from a final judgment for “any . . . 

reason” other than those listed elsewhere in the Rule. Fed. R. 

Civ. P. 60(b)(6). As we noted at the outset, courts are to 
11

dispense their broad powers under 60(b)(6) only in 

“extraordinary circumstances where, without such relief, an 

extreme and unexpected hardship would occur.” Sawka, 989 

F.2d at 140.

Ninety-two days after the Supreme Court issued its 

decision in Martinez, Cox filed a motion under Rule 60(b)(6), 

seeking to reopen his federal habeas proceeding based on the 

“significant change in procedural law” caused by the 

decision. (A. 74.) In ruling on Cox’s motion, the District 

Court noted that neither the Supreme Court nor our Court had 

decided whether the rule announced in Martinez constituted 

an “extraordinary circumstance” sufficient in and of itself to 

support a 60(b)(6) motion and observed a divide among the 

courts of appeals that had addressed the issue. The Court 

explained that the Fifth Circuit, in Adams v. Thaler, 679 F.3d 

312, 320 (5th Cir. 2012), held that “a change in law, including 

the change announced in Martinez, can never be the basis of 

60(b) relief.” (A. 4.) In contrast, it said, the Ninth Circuit 

had left open the possibility that Martinez, assessed together 

with other factors on a case-by-case basis, could justify 60(b) 

relief. (A. 4 (citing Lopez, 678 F.3d 1131).)4 Joining what it 

viewed to be the position of every other district court in our 

Circuit to have opined on the impact of Martinez, the Court 

“adopt[ed] the reasoning of the Fifth Circuit to hold that 

Martinez’s change of law, without more, [was] insufficient to 

warrant relief under 60(b)(6).” (A. 4-5.)

Although we agree with the District Court’s ultimate 

conclusion that Martinez, without more, is an insufficient 

basis for reopening a long-since-dismissed habeas petition, 

such as Cox’s, we cannot endorse the path it took to arrive at 

that conclusion. For one thing, Adams is not concordant with 

our precedent applying Rule 60(b)(6). For another, we cannot

determine from what it wrote whether the Court considered 

factors—if any there be—beyond Martinez’s jurisprudential

change in assessing Cox’s request for relief. To the extent the 

Court “adopt[ed] the reasoning” of Adams and there stopped 

its inquiry, it did not employ the full, case-specific analysis 

 

4

In Lopez, the Ninth Circuit also denied Rule 60(b)(6) 

relief. 678 F.3d at 1137.
12

we require when faced with a 60(b)(6) motion, although, as 

we have already noted, little was offered by the parties in that 

regard.

1. Whether Martinez Is Itself an Extraordinary 

Circumstance

Because it was a focal point of the District Court’s 

reasoning, we begin with a discussion of the Fifth Circuit’s 

decision in Adams v. Thaler. In Adams, as in this case, the 

district court dismissed a habeas petitioner’s ineffective 

assistance of counsel claims as procedurally defaulted under 

state law, finding that errors by state post-conviction counsel 

could not excuse the default. Following the Supreme Court’s 

decision in Martinez, the petitioner, who had been sentenced 

to death in Texas state court, filed a Rule 60(b)(6) motion 

seeking relief from the order dismissing his habeas petition. 

The petitioner pointed to several factors that, in combination, 

established “extraordinary circumstances” and entitled him to 

60(b)(6) relief: (1) the “‘jurisprudential sea change’ in federal 

habeas corpus law” occasioned by Martinez; (2) the fact that 

his case had resulted in a death sentence; and (3) “the 

equitable imperative that the true merit” of his claims be 

heard. Adams, 679 F.3d at 319. He also filed a motion for a 

stay of execution pending the district court’s resolution of his 

60(b)(6) motion. The district court granted the stay of 

execution.

The Fifth Circuit vacated that order as an abuse of the 

district court’s discretion, given that the petitioner had not 

shown a likelihood of success on his Rule 60(b)(6) motion. 

The court determined that the 60(b)(6) motion would not 

succeed because, under Fifth Circuit precedent, “[a] change in 

decisional law after entry of judgment does not constitute 

exceptional circumstances and is not alone grounds for relief 

from a final judgment.” Id. (alteration in original) (internal

quotation marks omitted). That proposition flowed from prior 

Fifth Circuit cases, which stated that “changes in decisional 

law . . . do not constitute the ‘extraordinary circumstances’ 

required for granting Rule 60(b)(6) relief.” Hess v. Cockrell, 

281 F.3d 212, 216 (5th Cir. 2002); accord Hernandez v. 

Thaler, 630 F.3d 420, 430 (5th Cir. 2011) (per curiam).
13

Concluding that Martinez was “simply a change in decisional 

law” and its development of procedural default principles was 

“hardly extraordinary,” the Adams court denied 60(b)(6) 

relief without examining any of the petitioner’s individual 

circumstances. Adams, 679 F.3d at 320 (internal quotation 

marks omitted).

Adams does not square with our approach to Rule 

60(b)(6).

As an initial matter, we have not embraced any

categorical rule that a change in decisional law is never an 

adequate basis for Rule 60(b)(6) relief. Rather, we have 

consistently articulated a more qualified position: that

intervening changes in the law rarely justify relief from final 

judgments under 60(b)(6). See, e.g., Reform Party of 

Allegheny Cnty. v. Allegheny Cnty. Dep’t of Elections, 174 

F.3d 305, 311 (3d Cir. 1999) (en banc) (“‘[I]ntervening 

developments in the law by themselves rarely constitute the 

extraordinary circumstances required for relief under Rule 

60(b)(6).’” (quoting Agostini v. Felton, 521 U.S. 203, 239 

(1997)) (emphasis added)); Morris, 187 F.3d at 341 (same). 

Stated somewhat differently, we have not foreclosed the 

possibility that a change in controlling precedent, even 

standing alone, might give reason for 60(b)(6) relief. See 

Wilson v. Fenton, 684 F.2d 249, 251 (3d Cir. 1982) (per 

curiam) (“A decision of the Supreme Court of the United 

States or a Court of Appeals may provide the extraordinary 

circumstances for granting a Rule 60(b)(6) motion . . . .”).

Even if there is not much daylight between the “never” 

position of the Fifth Circuit and the “rarely” position that we 

have staked out, Adams differs from our precedent in yet 

another significant respect: its failure to consider the full set 

of facts and circumstances attendant to the Rule 60(b)(6) 

motion under review. The Fifth Circuit in Adams ended its 

analysis after determining that Martinez’s change in the law

was an insufficient basis for 60(b)(6) relief and did not 

consider whether the capital nature of the petitioner’s case or 

any other factor might counsel that Martinez be accorded 

heightened significance in his case or provide a reason or 

reasons for granting 60(b)(6) relief. Indeed, the court did not 
14

address in any meaningful way the petitioner’s claim that he 

was not offering Martinez “alone” as a basis for relief. In 

Diaz v. Stephens, 731 F.3d 370, 376 (5th Cir. 2013), the Fifth 

Circuit later acknowledged that Adams and its other precedent 

had not cited additional equitable factors “as bearing on the 

analysis of extraordinary circumstances under Rule 

60(b)(6).”

5

 See also id. at 376 n.1. The fact that the 

petitioner’s 60(b)(6) motion was predicated chiefly on a postjudgment change in the law was the singular, dispositive issue 

for the Adams court.

We have not taken that route. Instead, we have long 

employed a flexible, multifactor approach to Rule 60(b)(6) 

motions, including those built upon a post-judgment change 

in the law, that takes into account all the particulars of a 

movant’s case. See Coltec Indus., Inc. v. Hobgood, 280 F.3d 

262, 274 (3d Cir. 2002) (noting, in the context of a 60(b)(6) 

analysis, the propriety of “explicit[ly]” considering “equitable 

factors” in addition to a change in law); Lasky v. Cont’l 

Prods. Corp., 804 F.2d 250, 256 (3d Cir. 1986) (citing 

multiple factors a district court may consider in assessing a 

motion under 60(b)(6)).6 The fundamental point of 60(b) is 

that it provides “a grand reservoir of equitable power to do 

justice in a particular case.” Hall v. Cmty. Mental Health 

Ctr., 772 F.2d 42, 46 (3d Cir. 1985) (internal quotation marks 

omitted). A movant, of course, bears the burden of 

establishing entitlement to such equitable relief, which, again, 

will be granted only under extraordinary circumstances. 

Mayberry v. Maroney, 558 F.2d 1159, 1163 (3d Cir. 1977). 

But a district court must consider the full measure of any 

properly presented facts and circumstances attendant to the 

movant’s request.

 

5 The court in Diaz assumed, for the sake of argument,

that a district court may consider several equitable factors in 

the Rule 60(b)(6) context, but found that consideration of 

those factors in Diaz’s case did not entitle him to 60(b)(6) 

relief. 731 F.3d at 377-78.

6 Notably, the factors outlined in Lasky parallel the 

equitable factors cited by the Fifth Circuit in Diaz as being of 

questionable relevance to Rule 60(b)(6) motions.
15

The Commonwealth appellees contend that Gonzalez 

v. Crosby, 545 U.S. 524 (2005), effectively displaced our 

flexible approach in the habeas context and precludes Rule 

60(b)(6) relief based on a change in law, including Martinez. 

In Gonzalez, the district court dismissed a petitioner’s habeas 

petition as barred by the statute of limitations of the 

Antiterrorism and Effective Death Penalty Act (“AEDPA”), 

28 U.S.C. § 2244(d). It found that the limitations period was 

not tolled while his second state post-conviction motion was 

pending because the motion was untimely and successive and, 

therefore, had not been “properly filed.” Id. at 527. The 

Eleventh Circuit denied a certificate of appealability and the 

petitioner did not seek subsequent review of that decision. 

Several months later, the Supreme Court rejected the district 

court’s reasoning in Artuz v. Bennett, 531 U.S. 4 (2000), and 

held that an application for state post-conviction relief can be

“properly filed” even if it was dismissed by the state as 

procedurally barred. The petitioner then filed a 60(b)(6) 

motion citing Artuz as an extraordinary circumstance. The 

Supreme Court rejected his argument. Noting that the 

circumstances warranting 60(b) relief would “rarely occur in 

the habeas context,” Gonzalez, 545 U.S. at 535, the Court 

opined that “not every interpretation of the federal statutes 

setting forth the requirements for habeas provides cause for 

reopening cases long since final,” id. at 536. It was “hardly 

extraordinary” that the district court’s interpretation of 

AEDPA, which was correct under the Eleventh Circuit’s 

then-governing precedent, was subsequently rejected in a 

different case. Id. at 536.

The Eleventh Circuit, describing Gonzalez, has 

observed that, in that opinion, “the U.S. Supreme Court . . . 

told us that a change in decisional law is insufficient to create 

the ‘extraordinary circumstance’ necessary to invoke Rule 

60(b)(6).” Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 

2014) (citing Gonzalez, 545 U.S. at 535-38). Relying on 

Gonzalez, the Eleventh Circuit in Arthur, just as the Fifth 

Circuit in Adams, went on to hold that “the change in the 

decisional law affected by the Martinez rule is not an 

‘extraordinary circumstance’ sufficient to invoke Rule 

60(b)(6).” Id. The Commonwealth appellees cite the 

Eleventh Circuit’s decision in an effort to persuade us that, in 
16

light of Gonzalez, we should abandon our case-by-case 

approach to 60(b)(6) motions.

We are not persuaded. We believe that the Eleventh 

Circuit extracts too broad a principle from Gonzalez, which

does not answer the question before us. Gonzalez did not say 

that a new interpretation of the federal habeas statutes—much 

less, the equitable principles invoked to aid their 

enforcement—is always insufficient to sustain a Rule 

60(b)(6) motion. Gonzalez merely highlights, in action, the 

position of both the Supreme Court and this Court that 

“[i]ntervening developments in the law by themselves rarely

constitute the extraordinary circumstances required for relief 

under Rule 60(b)(6).” Agostini, 521 U.S. at 239 (emphasis 

added); Morris, 187 F.3d at 341. And, to be clear, the 

Gonzalez Court examined the individual circumstances of the 

petitioner’s case to see whether relief was appropriate,

concluding that relief was not warranted given the petitioner’s 

“lack of diligence in pursuing review [in his own case] of the 

statute-of-limitations issue” eventually addressed in Artuz. 

Gonzalez, 545 U.S. at 537. For that matter, even after 

categorically pronouncing that Martinez’s change in the law

could not sustain a 60(b)(6) motion, the Eleventh Circuit in 

Arthur briefly considered (and rejected) “other factors” cited 

by the movant, including the capital nature of his case, as 

justification for 60(b)(6) relief in the wake of Martinez.

7

 

 

7 At least three other courts of appeals have similarly 

assessed a variety of factors on a case-by-case basis when 

deciding whether to grant a habeas petitioner’s Rule 60(b)(6) 

motion based on Martinez and Trevino. See Nash v. Hepp,

740 F.3d 1075, 1078-79 (7th Cir. 2014) (noting that, per 

Gonzalez and prior Seventh Circuit precedent, Martinez’s 

change in law could not justify 60(b)(6) relief, but analyzing 

the specific circumstances of the petitioner’s case, including 

his lack of diligence and his prior opportunity to raise the 

defaulted claims); McGuire v. Warden, Chillicothe Corr. 

Inst., 738 F.3d 741, 750-52 (6th Cir. 2013) (denying 60(b)(6) 

motion after concluding that Trevino did not impart new 

constitutional rights, Trevino’s change of the law was the sole 

basis for the motion, and its rule arguably did not apply to the 

petitioner’s claims); Lopez, 678 F.3d at 1135-37 (applying a 
17

Arthur, 739 F.3d at 633.

We, therefore, believe that our case-dependent

analysis, fully in line with Rule 60(b)(6)’s equitable 

moorings, retains vitality post-Gonzalez, and we do not adopt 

a per se rule that a change in decisional law, even in the 

habeas context, is inadequate, either standing alone or in 

tandem with other factors, to invoke relief from a final 

judgment under 60(b)(6). The District Court abused its 

discretion when it based its decision solely on the reasoning 

of Adams and failed to consider how, if at all, the capital 

aspect of this case or any other factor highlighted by the 

parties would figure into its 60(b)(6) analysis. We will 

remand to give it the opportunity to conduct that equitable 

evaluation now.

2. Rule 60(b)(6) Analysis

The grant or denial of a Rule 60(b)(6) motion is an 

equitable matter left, in the first instance, to the discretion of a 

district court. We offer, however, the following thoughts to 

aid the District Court in its further review of Cox’s motion.

First, and importantly, we agree with the District Court 

that the jurisprudential change rendered by Martinez, without 

more, does not entitle a habeas petitioner to Rule 60(b)(6) 

relief. To be sure, Martinez’s change to the federal rules of 

procedural default, though “limited,” was “remarkable.” 

Lopez, 678 F.3d at 1136 (internal quotation marks omitted). 

Martinez sharply altered Coleman’s well-settled application 

of the procedural default bar and altered the law of every 

circuit. The rule adopted in Martinez was also important, 

crafted, as it was, to ensure that fundamental constitutional 

claims receive review by at least one court.

Even so, Martinez did not announce a new 

constitutional rule or right for criminal defendants, but rather 

an equitable rule prescribing and expanding the opportunity 

for review of their Sixth Amendment claims. See Martinez, 

 

non-exhaustive, six-factor test to determine whether to grant 

60(b)(6) motion predicated on Martinez). 
18

132 S. Ct. at 1319; Arthur, 739 F.3d at 629; McGuire, 738 

F.3d at 750-51; Buenrostro v. United States, 697 F.3d 1137, 

1139-40 (9th Cir. 2012) (published order). A post-judgment 

change in the law on constitutional grounds is not, perforce, a 

reason to reopen a final judgment. See Coltec Indus., 280 

F.3d at 276 (affirming denial of Rule 60(b)(6) motion even 

though law on which judgment based declared 

unconstitutional); Blue Diamond Coal Co. v. Trs. of UMWA 

Combined Benefits Fund, 249 F.3d 519, 524 (6th Cir. 2001). 

Much less does an equitable change in procedural law, even 

one in service of vindicating a constitutional right, demand a 

grant of 60(b)(6) relief.

We also hasten to point out that the merits of a 

petitioner’s underlying ineffective assistance of counsel claim 

can affect whether relief based on Martinez is warranted. It is 

appropriate for a district court, when ruling on a Rule 

60(b)(6) motion where the merits of the ineffective assistance 

claim were never considered prior to judgment, to assess the 

merits of that claim. See Lasky, 804 F.2d at 256 n.10. After 

all, the Martinez exception to procedural default applies only 

where the petitioner demonstrates ineffective assistance by 

post-conviction counsel, as well as a “substantial” claim of 

ineffective assistance at trial. Martinez, 132 S. Ct. at 1318. 

When 60(b)(6) is the vehicle through which Martinez is to be 

given effect, the claim may well need be particularly 

substantial to militate in favor of equitable relief.8 A court 

 

8 Of course, the procedural default exception 

announced in Martinez applies only in states where 

ineffective assistance claims, either expressly or as a matter 

of practicality, could not have been raised on direct appeal. 

Trevino, 133 S. Ct. at 1914-15. In Commonwealth v. Grant, 

813 A.2d 726, 738 (Pa. 2002), Pennsylvania decided to defer 

consideration of ineffective assistance of counsel claims to 

collateral review, making Martinez applicable to its criminal 

procedural system. At the time Cox’s direct appeal and 

PCRA proceeding were being adjudicated by the 

Pennsylvania courts, however, Pennsylvania required a 

criminal defendant to raise ineffective assistance claims at the 

earliest stage of proceedings during which he was no longer 

represented by the allegedly ineffective lawyer, for example, 
19

 

the post-trial motions phase or direct appeal. Id. at 729; 

Commonwealth v. Hubbard, 372 A.2d 687, 695 & n.6 (Pa. 

1977). The District Court determined that, because Cox was 

represented by the same attorney at trial and on direct appeal 

to the Superior Court, his PCRA proceeding presented the 

first opportunity to raise an ineffective assistance of trial 

counsel claim and Martinez, therefore, applied.

The Commonwealth appellees argue that Martinez

does not apply to pre-Grant Pennsylvania and that, in any 

event, Cox availed himself of the opportunity to raise 

ineffective assistance claims before the trial court and the 

Pennsylvania Supreme Court. We do not decide whether, as 

a general matter, Pennsylvania’s pre-Grant legal landscape 

falls within the ambit of the Martinez rule. We note simply 

that appellees have not established why the District Court 

erred in concluding that, under the pre-Grant procedural 

paradigm, defendants who, like Cox, were represented by the 

same counsel at trial and on direct appeal did not have a 

realistic opportunity to raise an ineffective assistance of trial 

counsel claim until collateral review. Extant Pennsylvania 

precedent made clear that Cox was not obligated to assert 

such a claim until trial counsel had been relieved of his 

representation. Cox was entitled to rely on that guidance, 

and, therefore, did not have to raise his ineffective assistance 

claims until PCRA review. See Trevino, 133 S. Ct. at 1919-

20; Sutton v. Carpenter, 745 F.3d 787, 793-94 (6th Cir. 

2014).

It is true that trial counsel no longer represented Cox in 

his petition for allocatur to the Pennsylvania Supreme Court. 

Given the “unlikely and unpredictable” manner in which 

allocatur is granted by that court, however, a petition for

allocatur had never been seen as the first opportunity to raise 

a claim of ineffective assistance. Commonwealth v. Moore, 

805 A.2d 1212, 1223 (Pa. 2002) (Castille, J., concurring in 

part and dissenting in part). In addition, a party may not 

present new claims in a petition for allocatur. Pa. R. App. P. 

302(a). Cox’s trial counsel did not raise claims of his own 

ineffective assistance before the Superior Court—something 

he could not do, in any event, see Commonwealth v. Green, 

709 A.2d 382, 384 (Pa. 1998); Commonwealth v. Dancer, 331 
20

need not provide a remedy under 60(b)(6) for claims of 

dubious merit that only weakly establish ineffective 

assistance by trial or post-conviction counsel.

Furthermore, courts must heed the Supreme Court’s 

observation—whether descriptive or prescriptive—that Rule 

60(b)(6) relief in the habeas context, especially based on a 

change in federal procedural law, will be rare. Gonzalez, 545 

U.S. at 535-36 & n.9. Principles of finality and comity, as 

expressed through AEDPA and habeas jurisprudence, dictate 

that federal courts pay ample respect to states’ criminal 

judgments and weigh against disturbing those judgments via

60(b) motions. In that vein, a district court reviewing a 

habeas petitioner’s 60(b)(6) motion may consider whether the 

conviction and initial federal habeas proceeding were only 

recently completed or ended years ago. Considerations of 

repose and finality become stronger the longer a decision has 

been settled. See id. at 536-37 (cautioning against 60(b)(6) 

relief in “cases long since final” and “long-ago dismissals”); 

id. at 542 n.4 (Stevens, J., dissenting) (“In cases where 

significant time has elapsed between a habeas judgment and 

the relevant change in procedural law, it would be within a 

district court’s discretion to leave such a judgment in 

repose.”). Here, Cox’s direct appeal was decided in 1996 and 

his initial habeas petition, in which his claims were deemed 

defaulted, was dismissed in 2004, eight years before 

Martinez.

A movant’s diligence in pursuing review of his 

ineffective assistance claims is also an important factor. 

Where a movant has not exhausted available avenues of 

review, a court may deny relief under Rule 60(b)(6). See id.

at 537 (majority opinion); Lopez, 678 F.3d at 1136 & n.1; In 

re Fine Paper Antitrust Litig., 840 F.2d 188, 194-95 (3d Cir. 

1988).

A special consideration arises in this case, as well. 

Courts must treat with particular care claims raised in capital 

cases. Burger v. Kemp, 483 U.S. 776, 785 (1987) (“Our duty 

 

A.2d 435, 438 (Pa. 1975)—likely barring Cox from raising 

those claims in his allocatur petition.
21

to search for constitutional error with painstaking care is 

never more exacting than it is in a capital case.”). Although 

Cox did not receive a capital sentence for the murder of 

Davis, that murder conviction was used as an aggravating 

factor in arriving at a death sentence in a separate case, albeit 

one that is still under habeas review. That fact is significant.

Finally, we offer no opinion on the substantiality or 

lack thereof of Cox’s claims or how the District Court should 

weigh the various factors that may be pertinent to his Rule 

60(b)(6) motion. Nor do we intimate that the Court is 

precluded from reaching the same conclusion on remand 

following a more comprehensive analysis. We conclude only 

that, perhaps with additional briefing by the parties, a more 

explicit consideration of the facts and circumstances relevant 

to the concededly timely filed underlying motion would have 

been, and is now, appropriate.

IV. CONCLUSION

We will vacate the order of the District Court denying 

Cox’s Rule 60(b)(6) motion and remand for further 

proceedings consistent with this Opinion. If, following the 

proceedings on remand, an appeal is filed, that appeal shall be 

forwarded to this panel for decision.