Evans v. Senkowski

Filing 132

MEMORANDUM AND ORDER granting 123 Motion to Amend/Correct/Supplement; denying 122 Motion for Certificate of Appealability. For the reasons noted herein, The motion pursuant to Rule 60(b) (DE 123) is hereby granted to amend the Order (DE 117) t o include a denial of a certificate of appealability. Petitioner's motion for a certificate of appealability (DE 122) is denied. The Clerk of the Court is directed to terminate the motions filed under docket entry number 122 and 123, mail a copy of this decision to the Petitioner, and to maintain the closed status of this case. (Ordered by Judge Leonard D. Wexler on 9/22/2014.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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WILLIAM ANTHONY EVANS,

MEMORANDUM AND ORDER

cv 98-4488

Petitioner,
-against-

(Wexler, J.)

DANIEL SENKOWSKI, Superintendent
Clinton Correctional Facility,

F_ l L E 0
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Respondent.

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APPEARANCES:
WILLIAM EVANS, PETITIONER, PRO SE
No. 92-A-5030
P.O. Box 338
Napanoch, New York 12558-0338

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- ""WI'U ~ O.N.Y.

SEP 22 2014

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LONG ISLAND OFFICE

KATHLEEN M. RICE, ESQ., NASSAU COUNTY DISTRICT ATTORNEY
BY: DOUGLAS NOLL, ESQ,
ASSISTANT NASSAU COUNTY DISTRICT ATTORNEYS
Attorneys for Respondent
262 Old Country Road
Mineola, New York 11501
WE)(LER, District Judge
Before the Court is Petitioner's motion under Federal Rules of Civil Procedure, Rule
60(b) ("Rule 60(b)") for reliefofthis Court's order of September 27,2012 ("the Order") (docket
entry ("DE") 117). Specifically, Petitioner moves for a certificate of appealability (DE 122) and
moves to have this matter reopened "for the sole purpose of permitting [Petitioner] to request a
certificate of appealability and file a notice of appeal." (DE 123).
These motions and previous proceedings before this Court arise from Petitioner's
conviction in New York State Court in 1992 on charges connected with various bank robberies
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from late 1989 into early 1990. Familiarity with the earlier proceedings in state court as well as
before this Court, much of which is outlined in the Order, is assumed. Those proceedings
included decisions by this Court, affirmed by the Second Circuit, denying Evan's habeas petition
as being untimely. The Order denied a third motion by Petitioner pursuant to Rule 60(b), seeking
relief and/or reconsideration ofthe prior decisions on the grounds that a conflict of interest
existed between Petitioner and his pre-trial counsel, Richard Wissler, Esq., who also served as
standby counsel for Petitioner when he represented himself during his criminal trial. Evans had
argued his motion was timely because he only discovered the conflict in May 2010 as a result of a
Freedom oflnformation request. Order, at 7. Petitioner now moves (again) under Rule 60(b)
claiming that the Order did not grant or deny a certificate of appealability ("CO A'') as required
under Rule 11 of the Rules Governing Section 2254 Cases ("Rule 11 ").
Rule 11 states that a "district court must issue or deny a certificate of appealability when
it enters a final order adverse to the applicant." The Second Circuit has held that this requirement
applies to an order denying a motion under Rule 60(b) for relief from a judgment denying a
habeas petition under§ 2254. Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), cert. denied,
5356 U.S. 932 (2002). Respondent agrees that this Court should grant petitioner's motion toreopen the matter to either grant or deny a COA, but argues that the COA should be denied.
Therefore, as required under Rule 11, the case law and with the consent of Respondent, the Court
grants petitioner's Rule 60(b) motion to amend the Order to include a ruling on the COA.
"In order to obtain a COA, the petitioner must make 'a substantial showing of the denial
of a constitutional right."'Kellogg, at 104, quoting 28 U.S.C. § 2253(c)(2). This permits an
appeal "only if the appeal has a threshold quantum of merit." Id. (other citations omitted). As

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stated by the Second Circuit, in the context of a denial of a Rule 60(b) motion, "a COA should
issue only if the petitioner shows that (1) jurists of reason would find it debatable whether the
district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason
would find it debatable whether the underlying habeas petition, in light of the grounds alleged to
support the 60(b) motion, states a valid claim of the denial of a constitutional right." Id.
(citations omitted).
The Court denies Petitioner a COA in this case. As stated in the Order, the Rule 60(b)
motion was denied as time-barred. Petitioner argues that the motion should be granted because
he only confirmed the conflict of interest with his counsel as a result of information received in
May 2010 as a result of a Freedom oflnformation request. As this Court noted in the Order,
Petitioner "received that information more than a year before this matter was commenced."
Order at 7. Indeed, as stated in the papers submitted here, Petitioner acknowledges that he
discovered "the factual predicate on May 28, 2010, and [filed] his Rule 60(b)(6) motion on
March 13, 2012." See Petitioner's Memorandum of law, at 7-8. The Court finds that "jurists of
reason" would not debate that Petitioner's Rule 60(b) motion was untimely, or that in light ofthe
arguments raised by the Rule 60(b) motion, the petition states that a constitutional right has been
denied. Kellogg, at 104.
CONCLUSION
The motion pursuant to Rule 60(b) (DE 123) is hereby granted to amend the Order (DE
117) to include a denial of a certificate of appealability. Petitioner's motion for a certificate of
appealability (DE 122) is denied. The Clerk ofthe Court is directed to terminate the motions
filed under docket entry number 122 and 123, mail a copy of this decision to the

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Petitioner, and to maintain the closed status ofthis case.
SO ORDERED

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LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Central Islip, New York
September 22, 2014

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