govinfo:USCOURTS-paed-2_22-cv-05015-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF PENNSYLVANIA 
 MALIK BENNETT 
 
v. 
 
SUPERINTENDENT RANDY IRWIN, 
et al. 
: 
: 
: 
: 
: 
: 
 
CIVIL ACTION 
 
 
 
NO. 22-5015 
 
MEMORANDUM 
Bartle, J. June 4, 2026 
 Before the court is the motion of Malik Bennett “to 
reopen appellant process nunc pro tunc under Rule 60(b).” 
The court on June 25, 2024 approved the May 24, 2024 
Report and Recommendation of Magistrate Judge Lynne Sitarski and 
dismissed the petition of Malik Bennett for habeas corpus relief 
under 28 U.S.C. § 2254 on the ground that it was time barred. 
See 28 U.S.C. § 2244(d). His counsel had filed the petition 
twenty-one days too late. The court did not grant a certificate 
of appealability. 
 Bennett, who was convicted in 2009 of first degree 
murder and related offenses, has now filed a motion under Rule 
60(b) of the Federal Rules of Civil Procedure for relief from 
this court’s June 25, 2024 order. Rule 60(b)(1)-(5) lists five 
specific reasons for allowing relief. Rule 60(b)(6), the only 
subsection of Rule 60(b) that could possibly be applicable, is a 
catch-all which provides that a “court may relieve a party … 

-2- 
 
from a final judgment, order, or proceeding for … any other 
reason that justifies relief.” 
 Bennett does not argue that the undersigned erred in 
approving Magistrate Judge Sitarski’s Report and Recommendation 
and in dismissing his § 2254 petition. Rather, he asserts that 
his habeas counsel was ineffective in filing his petition out-
of-time. 
 Bennett may not raise under § 2254 the ineffectiveness 
or incompetence of his counsel during a federal or state 
collateral post-conviction proceeding. See 28 U.S.C. § 2254(i). 
The Supreme Court, however, has allowed motions under Rule 
60(b)(6) when they attack some defect in the integrity of the 
habeas corpus proceeding and not the court’s resolution on the 
merits. Gonzalez v. Crosby, 545 U.S. 524, 532 (2005). This 
court did not rule on the merits in Bennett’s petition except to 
decide that the actual innocence exception to the time bar did 
not apply. Bennett, it appears, is challenging the integrity of 
the habeas proceeding when he asserts his counsel was 
ineffective at that juncture for filing his petition late. He 
is not advancing a new claim to overturn his conviction but 
rather seeking to have his remaining habeas claims adjudicated 
on the merits. 
 While there is no specific deadline for bringing a 
Rule 60(b)(6) motion, Rule 60(c) requires that the motion “must 

-3- 
 
be made within a reasonable time.” Significantly, relief may be 
granted only under “extraordinary circumstances.” Liljeberg v. 
Health Servs. Acquisition Corp., 486 U.S. 847, 863-64 (1988); 
Ackermann v. United States, 340 U.S. 193, 199-202 (1950). A 
lack of diligence in filing a Rule 60(b)(6) motion negates any 
argument of an extraordinary circumstance. Gonzalez, 545 U.S. 
at 537-38. 
 Bennett states that he had little or no communications 
with his counsel from December 16, 2022 through December 28, 
2023. He asserts that she had had a “severe stroke” and as a 
result was late with his filing. He further points to the 
February 20, 2026 Order of the Pennsylvania Supreme Court 
transferring his counsel to inactive status for an indefinite 
period. Absent from his pending motion is any information as to 
when he first learned that the filing was late. Magistrate 
Judge Sitarski’s May 24, 2024 Report and Recommendation 
disclosed this fact. The court dismissed his petition as 
untimely on June 25, 2024. Bennett, who has the burden of 
proof, has not established any compelling reason why he waited 
almost two years, until April 13, 2026 to file his Rule 60(b)(6) 
motion. He has not demonstrated it was made within a reasonable 
time. Based on the record before the court, Bennett has not 
shown he acted diligently and thus has not presented an 
extraordinary circumstance justifying relief. 

-4- 
 
 Assuming that Bennett’s motion is proper under Rule 
60(b)(6), said motion will be denied. 

Passage view · GavelSight