MEMORANDUM

JAN E. DuBOIS, District Judge.

I. INTRODUCTION

This is a Request for Certificate of Appealability ("Request") filed by pro se petitioner Trevor Mattis with respect to this Court's Order dated March 12, 2018, denying pro se petitioner's Rule 60(b) Motion ("Motion"). In his Request, pro se petitioner contends that this Court failed to address arguments raised in supplemental briefing in support of his Motion. Because reasonable jurists would not debate the merits of denying pro se petitioner's Motion, his Request for Certificate of Appealability is denied.

II. PROCEDURAL HISTORY

Pro se petitioner was convicted on July 20, 1990, in Pennsylvania state court for first degree murder and sentenced to life in prison. After pursuing a challenge to his conviction in state court pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), pro se petitioner filed a Petition for Writ of Habeas Corpus in this Court on December 22, 1999, contending, inter alia, that the prosecution had withheld exculpatory evidence at trial in violation of its obligations under Brady v. Maryland, 373 U.S. 83 (1963). In denying and dismissing that Petition by Order dated January 17, 2001, the Court concluded, inter alia, that pro se petitioner's Brady claim was procedurally defaulted by appellate counsel's failure to file a petition for allowance of appeal in the Pennsylvania Supreme Court. Mattis v. Vaughn, 128 F.Supp.2d 249, 263-64 (E.D. Pa. 2001). Pro se petitioner appealed that ruling to the United States Court of Appeals for the Third Circuit, which affirmed the judgment of this Court by Order dated October 21, 2003. Mattis v. Vaughn, 80 F. App'x 154 (3d Cir. 2003).

On August 23, 2016, pro se petitioner filed an Application for Leave to File Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b) ("Application") in the Third Circuit, contending he was entitled to file a second or successive petition in light of new evidence of his actual innocence. Appl. at 19-20, 24, In re Trevor Mattis, No. 16-3434 (3d Cir. Aug. 23, 2016). By Order dated November 17, 2016, the Third Circuit denied pro se petitioner's Application, concluding that he had provided insufficient evidence of his actual innocence. Order, Mattis v. Vaughn, No. 99-6533 (E.D. Pa. Nov. 17, 2016), Doc. No. 39.

On December 27, 2016, pro se petitioner filed a Rule 60(b) Motion in this Court, setting forth the same claim of actual innocence, based on the same evidence presented to the Third Circuit. Motion, Mattis, No. 99-6533 (E.D. Pa. Dec. 27, 2016), Doc. No. 40. Over the next fifteen months, pro se petitioner filed at least eleven additional documents in support of his Motion, variously labeled as exhibits, memoranda, supplements, and addenda ("supplemental briefing"). By Order dated March 12, 2018, this Court denied pro se petitioner's Motion on the same ground on which the Third Circuit denied his Application under § 2244: "pro se petitioner has not satisfied his burden of proving that he is actually innocent." Order at 3, Mattis, No. 99-6533 (E.D. Pa. Mar. 12, 2018), Doc. No. 56.

On March 26, 2018, pro se petitioner filed the Request for Certificate of Appealability currently pending before this Court, contending that this Court failed to consider the following arguments set forth in his supplemental briefing1:

Pro se petitioner contends in his Request that the Court should issue a certificate of appealability on these arguments. The Request is ripe for decision.

III. LEGAL STANDARD

Pro se petitioner's Request is based on changes in the law under Martinez and Haskell. Changes in law may warrant relief under the "catch-all provision" of Rule 60(b)(6) in "extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur." Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014) (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 140 (3d Cir. 1993)). In determining whether "extraordinary circumstances exist" to justify relief under Rule 60(b)(6), courts "must examine the full panoply of equitable circumstances in the particular case." Satterfield v. Dist. Att'y of Phila., 872 F.3d 152, 155 (3d Cir. 2017) (citing Cox, 757 F.3d at 118). Those circumstances include, but are not limited to: "(1) the timeliness of [the] Rule 60(b)(6) motion; (2) the merits underlying [petitioner's] ineffective assistance of counsel claim; (3) the amount of time that elapsed between [petitioner's] conviction and the commencement of habeas proceedings; (4) [petitioner's] diligence in pursuing review of his claims; and (5) the gravity of [petitioner's] sentence." Greene v. Superintendent Smithfield SCI, 882 F.3d 443, 448 n.5 (3d Cir. 2018); see also Satterfield, 872 F.3d at 161 n.10. However, it is "an unstated but critical premise" 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." Norris v. Brooks, 794 F.3d 401, 405 (3d Cir. 2015)

Because pro se petitioner is seeking a certificate of appealability of the Court's March 12, 2018, Order denying his Motion under Rule 60(b), the question before the Court is whether reasonable jurists would debate whether the Rule 60(b) Motion states a valid claim of the denial of a constitutional right or the propriety of this Court's procedural rulings with respect to pro se petitioner's claims. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Buck v. Davis, 137 S.Ct. 759, 773, 775 (2017). The Court now considers each of pro se petitioner's grounds for relief.

IV. ANALYSIS

A. Ground 1: Cause for Procedural Default of Claims for "Layered" Ineffective Assistance of Counsel under Martinez

In his Request, pro se petitioner first contends that the default of the Brady claim in his original habeas petition is excused by the "layered ineffective assistance of Trial, Direct appeal, and Appellate counsel"2 pursuant to the Supreme Court's decision Martinez v. Ryan. Doc. No. 57 at 3. In Martinez, the Supreme Court held that the ineffective assistance of counsel in state collateral proceedings may constitute "cause" to excuse the procedural default of a claim for ineffective assistance of trial counsel. 566 U.S. at 9. For the reasons stated below, the Court concludes that Martinez is not relevant to pro se petitioner's claims for "layered" ineffective assistance of counsel and therefore does not warrant relief under Rule 60(b)(6) with respect those claims.

First, pro se petitioner's claim for "layered" ineffective assistance of appellate counsel has been precluded by the Supreme Court decision Davila v. Davis, 137 S.Ct. 2058, 2065 (2017). In that claim for "layered" ineffective assistance of counsel, pro se petitioner contends that the default of his Brady claim is excused by the ineffective assistance of his appellate counsel for "fail[ing] to file allocatur to the State Supreme Court," and that the default3 of his claim for ineffective assistance of his appellate counsel is excused by the ineffective assistance of his PCRA counsel. Doc. No. 49 at 2-3; see also Doc. No. 50 at 1; Doc. No. 57 at 3. In Davila, however, the Supreme Court limited Martinez, holding that a federal court may not "hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner's state postconviction counsel provides ineffective assistance by failing to raise that claim." 137 S. Ct. at 2065. In light of Davila, the change of law articulated in Martinez is not "actually relevant to [pro se petitioner's] position" that the default of his claim for ineffective assistance of appellate counsel is excused by the ineffective assistance of his PCRA counsel. Norris, 794 F.3d at 405; accord Greene, 882 F.3d at 451 n.9. Martinez does not support relief under Rule 60(b)(6) with respect to this claim.

Second, pro se petitioner's claim for "layered" ineffective assistance of trial counsel is irrelevant to the default of his Brady claim and cannot excuse that default. As noted above, pro se petitioner's Brady claim was defaulted by appellate counsel when he failed to file a petition for allowance of appeal in the Pennsylvania Supreme Court. In his claim for "layered" ineffective assistance of trial counsel, however, pro se petitioner argues that trial counsel's alleged failure to discover the exculpatory evidence underlying his Brady claim excuses the default of his Brady claim. Pro se petitioner also argues under Martinez that the default of his claim for ineffective assistance of trial counsel is excused by the ineffective assistance of his PCRA counsel. Doc. No. 49 at 2.

The Court rejects this argument. The alleged errors by trial counsel have nothing to do with the default of his Brady claim by appellate counsel. Because the alleged errors by trial counsel are irrelevant to the default of pro se petitioner's Brady claim by appellate counsel, petitioner's claim of "layered" ineffective assistance of trial counsel does not excuse the default of that claim.

B. Ground 1b: Extension of Martinez to Abandonment by Appellate Counsel

In his next ground for relief, pro se petitioner argues that Martinez ought to be extended to excuse the default of the Brady claim raised in his original habeas petition because of the alleged abandonment by appellate counsel by failing to file a petition for allowance of appeal in the Pennsylvania Supreme Court. Doc. No. 57 at 2; Doc. No. 49 at 2-3.

The cases cited by pro se petitioner in support of his position are inapposite. In his argument, pro se petitioner relies on Supreme Court decisions holding that counsel may be ineffective for failing to file an initial appeal as a matter of right, Roe v. Flores-Ortega, 528 U.S. 470, 487 (2000), and that the abandonment of counsel in collateral proceedings may warrant equitable tolling of the statute of limitations under AEDPA, Holland v. Florida, 560 U.S. 631, 652 (2010). See also Evitts v. Lucey, 469 U.S. 387, 396 (1985). In pro se petitioner's case, however, the relevant attorney error did not occur in an initial appeal as a matter of right or in collateral proceedings, but when appellate counsel failed to file a petition for allowance of a discretionary appeal in the Pennsylvania Supreme Court. The United States Supreme Court has long distinguished discretionary appeals to state supreme courts, where there is no right to effective assistance of counsel, Wainwright v. Torna, 455 U.S. 586, 587 (1982), from the assistance of counsel in an initial appeal as a matter of right or in collateral proceedings. Because Flores-Ortega and Holland do not address the ineffective assistance of counsel in filing a petition for allowance of a discretionary appeal to a state supreme court, those cases are inapposite to pro se petitioner's case and do not warrant relief under Rule 60(b)(6).

The Supreme Court decision in Davila forecloses pro se petitioner's request to extend Martinez to appellate counsel's failure to file a petition for allowance of appeal in the Pennsylvania Supreme Court. As noted above, Martinez allows a habeas petitioner to excuse the default of a claim for ineffective assistance of trial counsel by showing that the default was caused by ineffective assistance of counsel in state collateral proceedings. In Davila, the Supreme Court declined to extend Martinez to excuse the default of a claim for ineffective assistance of appellate counsel. In reaching that conclusion, the Supreme Court stated that extending "Martinez's highly circumscribed, equitable exception to new categories of procedurally defaulted claims" would allow the exception to replace the rule. 137 S. Ct. at 2065.

For all the foregoing reasons, the Court rejects pro se petitioner's argument that Martinez should be extended to a new class of claims—those procedurally defaulted due to ineffective assistance of appellate counsel. Pro se petitioner's claim for relief under Rule 60(b)(6) on this ground is denied.

C. Ground 2: Extension of Martinez to Brady Claim

Petitioner next argues that "a Martinez v. Ryan exception extends to a Brady violation that involves perjured testimony . . . as cause to excuse [a] procedural default." Doc. No. 57 at 1-2, 6. To support his contention, pro se petitioner relies entirely on the Third Circuit decision in Haskell v. Superintendent Greene SCI, 866 F.3d 139 (3d Cir. 2017). Id. at 6. The Third Circuit in Haskell, in ruling that a habeas petitioner was entitled to relief, held that the petitioner need only show that the prosecution's knowing use of perjured testimony at trial was "material" and not that the petitioner suffered "actual prejudice" as a consequence. 866 F.3d at 148. Haskell, however, does not address Martinez or the excusing of the procedural default of claims for relief for Brady violations. In light of the Supreme Court decision in Davila, supra, this Court declines to extend Martinez by treating Brady violations as cause for excusing a procedural default.4

D. Ground 2b: Claim for Relief under Haskell

Finally, pro se petitioner argues that he is entitled to relief under the "materiality" standard articulated by the Third Circuit in Haskell, supra, for the prosecution's knowing use of perjured testimony. Doc. No. 57 at 7-8.

The standard articulated in Haskell, however, applies only to claims a federal court may reach on the merits. Indeed, in Haskell, the prosecution conceded that the claim for perjured testimony "was not procedurally defaulted and that the District Court must review it on the merits." 866 F.3d at 145. In this case, however, the Court is barred from reaching the merits of pro se petitioner's claim that the prosecution knowingly used perjured testimony for two reasons. First, the Court may not address the merits of the claim because pro se petitioner did not raise this claim in his original habeas petition, Mattis, 128 F. Supp. 2d at 254, and it is barred as a second or successive petition. See Gonzalez v. Crosby, 545 U.S. 524, 532, 532 n.4 (2005). Second, as with his Brady claim, petitioner did not present this claim to the Pennsylvania Supreme Court on direct appeal; thus, it is procedurally defaulted along with his Brady claim. Pro se petitioner has not shown cause and prejudice or manifest injustice to excuse the procedural default. McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999) (citing 28 U.S.C. § 2254(b)).

The decision in Haskell is applicable only to the merits of a claim for the prosecution's knowing use of perjured testimony at trial. It is irrelevant to pro se petitioner's Motion and does not support his request for relief pursuant to Rule 60(b).

E. Order 218 of the Pennsylvania Supreme Court

Finally, the default of pro se petitioner's Brady claim by appellate counsel's failure to file a petition for allowance of appeal in the Pennsylvania Supreme Court is not excused by Order 218 of the Pennsylvania Supreme Court, effective May 9, 2000. Order 218 provides that a habeas petitioner need not file a petition for allowance of appeal in the Pennsylvania Supreme Court to exhaust his state remedies for purposes of federal habeas corpus proceedings. Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004). However, that Order does not apply retroactively, Wenger v. Frank, 266 F.3d 218, 226 (3d Cir. 2001), and is inapplicable to this case because the time in which pro se petitioner was required to file a petition for allowance of appeal in the Pennsylvania Supreme Court expired thirty days after the Pennsylvania Superior Court denied his appeal on July 14, 1992, Mattis, 128 F. Supp. 2d at 263.

V. CONCLUSION

For the foregoing reasons, pro se petitioner's Request for Certificate of Appealability is denied. A certificate of appealability was not issued in this case, and will not be issued at this time, because reasonable jurists would not debate whether the habeas corpus petition or the Rule 60(b) Motion states a valid claim of the denial of a constitutional right or the propriety of this Court's procedural rulings with respect to pro se petitioner's claims. See 28 U.S.C. § 2253(c)(2) (providing that a certificate of appealability in a § 2254 case "only if the applicant has made a substantial showing of the denial of a constitutional right"); Slack v. McDaniel, 529 U.S. 473, 484 (2000). An appropriate order follows.