2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-27-2015

Eric Norris v. Marilyn Brooks

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"Eric Norris v. Marilyn Brooks" (2015). 2015 Decisions. Paper 793.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-4448

___________

ERIC D. NORRIS,

 Appellant

v.

MARILYN BROOKS; THE DISTRICT ATTORNEY 

OF THE COUNTY OF PHILADELPHIA; 

THE ATTORNEY GENERAL 

OF THE STATE OF PENNSYLVANIA

__________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-06-cv-05509)

District Judge: Honorable Stewart Dalzell

___________

Argued June 2, 2015

Before: RENDELL, HARDIMAN and VANASKIE, 

Circuit Judges.

(Filed: July 27, 2015)
2

Arianna J. Freeman (Argued)

Federal Community Defender Office for the Eastern District 

of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Attorney for Petitioner-Appellant

Susan E. Affronti (Argued)

Molly S. Lorber

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Attorneys for Respondents-Appellees

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

Eric Norris, a state prisoner in Pennsylvania, petitioned 

for a writ of habeas corpus in the United States District Court 

for the Eastern District of Pennsylvania in 2007. The District 

Court denied the petition, holding that his claim of ineffective 

assistance of trial counsel was procedurally defaulted during 

collateral relief proceedings in state court. In 2012, Norris 

filed a motion for relief from judgment invoking Martinez v. 

Ryan, 132 S. Ct. 1309 (2012), which held that attorney error 

in collateral proceedings may sometimes excuse the 

procedural default of a habeas petitioner’s ineffective 

assistance claim. The District Court denied his motion, and 

Norris appeals.
3

I

Norris was arrested by Philadelphia police in June 

1999 for committing an aggravated assault about a year 

earlier. His trial began in the Court of Common Pleas of

Philadelphia County in August 2001 and ended in a 

conviction. At the conclusion of the trial, Norris complained 

that his counsel had been ineffective, and the court appointed 

new counsel to argue post-verdict motions. That attorney 

lodged several claims of ineffective assistance of trial counsel

on Norris’s behalf, all of which the trial court rejected in 

December 2001. Norris was ultimately sentenced to 25–50 

years’ imprisonment pursuant to Pennsylvania’s “three 

strikes” law. 

In June 2003, Norris filed a pro se petition for 

collateral relief in the Court of Common Pleas pursuant to 

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

Cons. Stat. § 9501 et seq., asserting that trial counsel was 

ineffective for failing to seek dismissal of the charges on 

speedy trial grounds. The court then appointed new counsel, 

J. Matthew Wolfe, who filed an amended PCRA petition on 

behalf of Norris. The amended petition made claims of newly 

discovered evidence and ineffective assistance of counsel, 

including a reassertion of the claim that trial counsel had been 

ineffective for not seeking dismissal of the charges on speedy 

trial grounds. The petition asserted that more than three years 

elapsed between the issuance of the criminal complaint and 

the beginning of Norris’s trial and argued that this delay 

violated a state procedural rule and the Sixth Amendment of 

the United States Constitution. The Court of Common Pleas 

disagreed and dismissed the petition, ruling in pertinent part 

that the speedy trial issue could not support an ineffective 

assistance claim because it lacked merit. 
4

In November 2005, Wolfe filed an appeal in the 

Superior Court of Pennsylvania and abandoned the speedy 

trial argument despite Norris’s insistence that it be included. 

In two pro se filings, Norris presented the speedy trial 

argument himself and accused Wolfe of providing ineffective 

assistance. The Superior Court then directed Wolfe to file a 

petition for remand analyzing Norris’s contentions in order to 

help the court determine whether to remand the case for 

appointment of new counsel. See Commonwealth v. Battle, 

879 A.2d 266, 268–69 (Pa. Super. Ct. 2005) (describing the 

Superior Court’s procedure for handling pro se filings by 

counseled litigants), abrogated by Commonwealth v. Jette, 23 

A.3d 1032 (Pa. 2011). The court eventually denied the

petition for remand and affirmed the dismissal of the PCRA 

petition, holding that the speedy trial issue was waived 

because it was not included in Norris’s counseled brief and 

that Wolfe had not provided ineffective assistance by 

declining to make that argument. The Supreme Court of 

Pennsylvania denied review. Commonwealth v. Norris, 909 

A.2d 1289 (2006).

Norris filed a habeas petition in the District Court in 

2007. The sole basis for his petition was the claim that his 

trial and direct appeal counsel were ineffective in failing to 

raise the speedy trial issue. The Commonwealth responded 

that this claim was procedurally defaulted on PCRA appeal 

and was meritless in any event. In June 2007, the District 

Court adopted a magistrate judge’s recommendation that the 

petition be denied because of a procedural default. 

In March 2012, the Supreme Court decided Martinez, 

holding that “[i]nadequate assistance of counsel at initialreview collateral proceedings may establish cause for a 

prisoner’s procedural default of a claim of ineffective 
5

assistance at trial.” 132 S. Ct. at 1315. Less than two months 

later, Norris filed a motion for relief from judgment under 

Federal Rule of Civil Procedure 60(b), arguing that Martinez

excused the procedural default of his ineffective assistance 

claim. The Court denied his motion on three grounds: (1) 

Martinez did not apply because Norris’s claim was 

abandoned on collateral appeal, not initial collateral review; 

(2) Martinez alone was not an “extraordinary circumstance” 

justifying relief from judgment; and (3) Norris’s Rule 60(b) 

motion was an impermissible second or successive habeas 

petition because it presented claims “identical to those in 

Norris’s prior habeas filing.” App. 17. We granted Norris a 

certificate of appealability.1

II

The question presented is whether the District Court 

abused its discretion when it denied Norris’s Rule 60(b) 

motion by holding that Martinez does not apply to Norris’s

case.2

 

1 The District Court had jurisdiction under 28 U.S.C. 

§ 2254, and we have jurisdiction under 28 U.S.C. §§ 1291 

and 2253. “We review a district court’s denial of a Rule 60(b) 

motion for abuse of discretion.” Morris v. Horn, 187 F.3d 

333, 341 (3d Cir. 1999) (internal quotation marks omitted).

2 We reach this question because, contrary to the 

District Court’s alternative holding, Norris’s Rule 60(b) 

motion was not an impermissible second or successive habeas 

petition under the Antiterrorism and Effective Death Penalty 

Act of 1996 (AEDPA), 28 U.S.C. § 2244(b)(1). Although a 

Rule 60(b) motion that presents substantive claims for relief 

from a state conviction may run afoul of AEDPA’s strictures 
6

A

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.” Fed. R. Civ. P. 

60(b)(6). Relief is appropriate under this catch-all provision 

only in “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).

The Supreme Court has said that “[s]uch circumstances will 

rarely occur in the habeas context,” Gonzalez v. Crosby, 545 

U.S. 524, 535 (2005), and that “[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). To determine 

whether this is an exceptional case in which a legal 

development supports Rule 60(b)(6) relief in the habeas 

context, we must examine how Martinez—the legal precedent

relied upon by Norris—changed the law of habeas.

In general, “[a]n application for a writ of habeas 

corpus on behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted unless it 

appears that . . . the applicant has exhausted the remedies 

available in the courts of the State.” 28 U.S.C. 

§ 2254(b)(1)(A). A habeas petition should therefore be denied 

if it raises claims that were procedurally defaulted in state 

court. See Coleman v. Thompson, 501 U.S. 722, 731–32 

(1991). This rule yields only when “the prisoner can 

 

on successive habeas petitions, Norris’s was not such a 

motion because it “merely assert[ed] that a previous ruling 

which precluded a merits determination was in error.” 

Gonzalez v. Crosby, 545 U.S. 524, 532 n.4 (2005).
7

demonstrate cause for the default and actual prejudice . . . or 

demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice.” Id. at 750.

In Coleman, the Supreme Court held that attorney 

error during state collateral proceedings does not constitute 

cause to excuse the procedural default of a claim later raised 

in habeas. Id. at 752–53. The Court reasoned that “[t]here is 

no constitutional right to an attorney in state post-conviction 

proceedings,” id. at 752 (citing Pennsylvania v. Finley, 481 

U.S. 551 (1987)), and when a prisoner has no right to counsel

he bears the risk of attorney error causing a procedural 

default, id. at 752–54 (citing Murray v. Carrier, 477 U.S. 478 

(1986)).

As noted herein, Martinez established an exception to 

the rule in Coleman by holding that attorney error in 

collateral proceedings may sometimes establish cause for the 

default of a claim of ineffective assistance of trial counsel. 

132 S. Ct. at 1315. The Martinez Court made clear, however, 

that this is a “narrow exception.” Id. Most importantly, the

Court stated that the exception applies only to attorney error 

in initial-review collateral proceedings, not appeals from 

those proceedings. Id. at 1320. And the Court clarified that 

the exception applies only to cases in which the state formally 

requires prisoners to raise claims of ineffective assistance of 

trial counsel on collateral review rather than direct appeal.3

 

3 Dissenting in Martinez, Justice Scalia argued that this 

second limitation on the Court’s holding “lacks any 

principled basis” and predicted that it “will not last.” 132 S. 

Ct. at 1321 n.1. The following Term, the Court ruled in 

Trevino v. Thaler that Martinez also applies to situations in 

which a “state procedural framework, by reason of its design 
8

Id. The reason for these caveats, it seems, is that the Court 

was concerned only about cases in which the error of a 

prisoner’s collateral review attorney results in “no state court 

at any level” hearing the prisoner’s claim and the claim being 

defaulted for purposes of habeas review in federal court. Id. at 

1316. Outside of these “limited circumstances,” Martinez

made clear that Coleman remains the law. Id. at 1320.

We considered whether the Supreme Court’s decision 

in Martinez could support a habeas petitioner’s motion for 

relief from judgment in Cox v. Horn, 757 F.3d 113 (3d Cir. 

2014). We held that “Martinez, without more, does not entitle 

a habeas petitioner to Rule 60(b)(6) relief,” but that Martinez

could suffice in conjunction with equitable considerations—

for example, the merits of the prisoner’s underlying 

ineffective assistance claim and his diligence in seeking 

relief. Id. at 124–26.

In accordance with our guidance in Cox, Norris 

devotes most of his opening brief to arguing that Martinez

and various equitable factors entitle him to relief from 

judgment here. The problem is that an unstated but critical 

premise of Cox and our other Rule 60(b) cases is that a 

change in the law doesn’t even begin to support a Rule 60(b) 

motion unless the change is actually relevant to the movant’s 

position. Cf. Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 

367, 388 (1992) (holding that a change in the law did not 

justify Rule 60(b)(5) relief because “the [new] case . . . was 

immaterial to petitioners”). And unlike in Cox, where the 

 

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.”

133 S. Ct. 1911, 1921 (2013).
9

attorney error cited to excuse the procedural default occurred 

at the initial-review collateral proceeding, the alleged error 

here occurred during Norris’s collateral appeal, when Wolfe 

opted not to present the speedy trial issue to the Superior 

Court.

Martinez made very clear that its exception to the 

general rule of Coleman applies only to attorney error causing 

procedural default during initial-review collateral 

proceedings, not collateral appeals. 132 S. Ct. at 1316, 1320; 

see also Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir. 

2012). Because Norris’s claim of ineffective assistance of 

trial counsel was presented on initial collateral review and 

only waived on collateral appeal, we hold that Martinez does

not justify relief under Rule 60(b)(6).

B

Norris’s arguments to avoid this conclusion are 

unpersuasive. His primary contention is that his ineffective 

assistance claim was actually defaulted during the initialreview PCRA proceeding because Wolfe inadequately 

presented the claim to the Court of Common Pleas. We have

two problems with this argument.

First, the Martinez exception applies only when “an 

attorney’s errors . . . cause[] a procedural default in an initialreview collateral proceeding,” 132 S. Ct. at 1318, and we’re 

unconvinced by Norris’s conflation of shoddy advocacy and 

procedural default. Second, given that the District Court 

concluded in its initial habeas determination that the waiver 

occurred on PCRA appeal and not on initial review, and that 

we cannot review that ruling in our review of a Rule 60(b) 

motion, we must accept as binding the District Court’s 

determination that the speedy trial issue was raised in the 

initial-review PCRA proceedings. See Browder v. Dir., Dep’t 
10

of Corr., 434 U.S. 257, 263 n.7 (1998) (“[A]n appeal from 

denial of Rule 60(b) relief does not bring up the underlying 

judgment for review.”).

Norris’s secondary argument is that the procedural 

default of his ineffective assistance claim must be excused 

because Wolfe abandoned him and was no longer acting as 

his agent when the claim was waived on PCRA appeal. He

relies on Maples v. Thomas, in which the Supreme Court held 

that a procedural default may be excused “when an attorney 

abandons his client without notice, and thereby occasions the 

default.” 132 S. Ct. 912, 914 (2012); see also Holland v. 

Florida, 560 U.S. 631, 659 (2010) (Alito, J., concurring in 

judgment) (“Common sense dictates that a litigant cannot be 

held constructively responsible for the conduct of an attorney 

who is not operating as his agent in any meaningful sense of 

that word.”); Coleman, 501 U.S. at 753 (“‘[C]ause’ under the 

cause and prejudice test must be something external to the 

petitioner, something that cannot fairly be attributed to 

him. . . .”).

As the Commonwealth points out, however, this 

argument made its debut in Norris’s reply brief and, “[a]s a 

general matter, the courts of appeals will not consider 

arguments raised on appeal for the first time in a reply brief.”

Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 204 

n.29 (3d Cir. 1990). Moreover, Norris’s allegations against 

Wolfe fall short of abandonment in any event. He claims that 

Wolfe failed to keep him sufficiently informed about the 

Commonwealth’s motion to dismiss the PCRA petition, for 

example, and that Wolfe waived the speedy trial claim on 

PCRA appeal despite Norris’s instructions to the contrary. 

That is not abandonment. Cf. Maples, 132 S. Ct. at 916–17 

(counsel changed jobs and dropped the representation without 
11

notice); Holland, 560 U.S. at 652 (counsel failed to file the 

prisoner’s habeas petition on time and ignored his requests for 

communication “over a period of years”). We therefore reject 

Norris’s bid to reopen his habeas proceedings, and the order 

of the District Court will be affirmed.