Opinion
C.A. No. 13-1675
06-11-2013
GEORGE A. STROLL, Appellant v. PHILIP L. JOHNSON; ET AL.
BLD-242 (M.D. Pa. Civ. No. 00-cv-01959) Present: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges
Submitted is Appellant's request for certificate of appealability under 28 U.S.C. § 2253(c)(1) in the above-captioned case.
MMW/MYV/eal/smwRespectfully,
Clerk
ORDER
The foregoing request for a certificate of appealability is denied. See 28 U.S.C. § 2253. Stroll has failed to show that jurists of reason would find the District Court's decision denying his Rule 60(b) motion to be debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Pridgen v. Shannon, 380 F.3d 721, 728 (3d Cir. 2004). Martinez v. Ryan, 132 S. Ct. 1309 (2012), does not provide a basis for relief under Rule 60(b). See Adams v. Thaler, 679 F.3d 312, 320 (5th Cir. 2012). Even if it did, however, the decision would have no bearing on Stroll's present claim because his § 2254 petition did not include an ineffectiveness claim for trial counsel's failure to object to an erroneous accomplice liability instruction. The claim that was actually procedurally defaulted—highlighted by Stroll as claim H—was for a judicial error concerning that alleged improper instruction. To the extent that Stroll was attempting to raise a new claim for habeas relief, the Rule 60(b) motion would be subject to dismissal as an unauthorized second or successive § 2254 petition. See 28 U.S.C. § 2244(b); Gonzalez v. Crosby, 545 U.S. 524, 533 (2005).
By the Court,
/s/ Anthony J. Scirica
Circuit Judge Dated: June 11, 2013
Smw/cc: George A. Stroll
Jason E. McMurry, Esq.
A True Copy
/s/
Marcia M. Waldron, Clerk
Certified order issued in lieu of mandate.