Figueroa v. Walsh
ORDER re 78 Motion for Reconsideration. Petitioner's Motion (Dkt. 78) is DENIED. Petitioner has violated the court's clear warning about successive habeas petitions, a warning issued less than six months before Petitioner signed and se nt his Motion. The court must therefore escalate the consequences of non-compliance: Petitioner is hereby cautioned that filing additional meritless motions may, on notice and opportunity to be heard, lead the court to enjoin him from further filings in this matter without first obtaining permission from the court. The Clerk of Court is respectfully directed to send a copy of this order to pro se Petitioner. So Ordered by Judge Nicholas G. Garaufis on 7/06/2017. (c/m to petitioner pro se) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
JAMES J. WALSH,
NICHOLAS G. GARAUFIS,United States District Judge.
Pro se Petitioner William Figueroa moves under Rule 60(b)ofthe Federal Rules of Civil
Procedure to "reopen the judgment denying federal habeas relief." (Mot. for Reconsid.
("Pet'r Mot.")(Dkt. 78) at 1.) For the following reasons, Petitioner's Motion is DENIED.
The court assumes familiarity with the underlying facts, procedural history, and relevant
law, especially in light of Petitioner's multiple prior filings that this court construed as
impermissible successive petitions. ISee Nov. 9, 2016, Order (Dkt. 75); May 16, 2013, Order
(Dkt. 69); Mar. 3, 2010, Order(Dkt. 52); May 1, 2008, Order(Dkt 42).) Petitioner was
convicted of murder in 1991 in the New York Supreme Court, Kings County. In addition to
direct appeals. Petitioner has filed numerous pro se collateral attacks under 28 U.S.C § 2254 and
Rule 60(b), all of which have been unsuccessful. (See, e.g.. Mar. 3, 2010, Order at 2-5; May 16,
2013, Order at 2-3.)
A district court may only consider a successive habeas petition if the Court of Appeals
certifies that the application presents a claim that "(1)relies on a new rule ofconstitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
xmavailable"; or(2)presents new facts which could not have previously been discovered. S^
28 U.S.C. § 2244(b)(2). Rule 60(b) motions, meanwhile, offer an opportunity to seek relieffrom
a final judgment, order, or proceeding for any reason "thatjustifies relief." Fed. R. Civ.
P. 60(b)(6). However, where a Rule 60(b) motion "attacks the underlying conviction[,]...the
court may treat the Rule 60(b) motion as 'a second or successive' habeas petition, in which case
it should [either] be transferred to [the Second Circuit] for possible certification," or denied "'as
beyond the scope of Rule 60(b).'" Harris v United States. 367 F.3d 74, 79-82(2d Cir. 2004)
(quoting Gitten v. United States. 311 F.3d 529,534(2d Cir. 2002)).
"In light of Petitioner's history ofimpermissible successive motions," this court has
already warned Petitioner in the strongest terms that he may not circumvent the proper procedure
for successive petitions, stating:"Should Petitioner continue to file successive petitions without
first seeking authorization from the Second Circuit, this court will exercise its discretion to deny
those motions outright." (Nov. 9, 2016, Order at 2-3.) Nonetheless, Petitioner's Motion restates
multiple challenges to his underlying conviction, all of which this court rejected 16 years ago.^
These claims represent successive habeas claims because they do not allege any error in
Petitioner's prior federal habeas proceeding. Harris. 367 F.3d at 79-82. Pursuant to the court's
prior order, the court declines to "order any further curative transfers." (Nov.9,2016, Order
at 2.) The court therefore denies these claims as beyond the scope of Rule 60(b).
Petitioner's 30-page Motion contains a single claim that properly seeks relief under
Rule 60(b). Petitioner argues that, in light ofthe Supreme Court's recent decision in Buck v.
Davis. — U.S. —,137 S. Ct. 759(2017), this court should reconsider one ofits prior orders
denying a previous Rule 60(b) motion. Because this claim attacks a prior order from this court
^ Petitioner's reasserted claims include inefifective assistance oftrial counsel(compare, e.g.. Pet'r Mot.fif 5-8 with
Feb. 2,2001, Mem.& Order("2001 M&O")
(Dkt. 18) at 11-13); ineffective assistance of appellate counsel
(compare, e.g.. Pet'r Mot.13 with 2001 M&O at 13-15); a defective indictment(compare Pet'r Mot. 13-14 with
2001 M&O at 15); allegedly inappropriate conduct by the trial court(compare Pet'r Mot. 35-39 with 2001 M&O
at 22-23); and flawed jury instructions(compare Pet'r Mot.
40-41 with 2001 M&O at 23-24).
rather than Petitioner's underlying conviction, the claim is properly brought as a new motion
under Rule 60(b). Harris, 367 F.Sd at 79-82.
In an order dated May 22, 2013(the "May 2013 Order"),this court rejected Petitioner's
Rule 60(b)claim that reconsideration was merited under the new law established in Martinez v.
Ryan,566 U.S. 1 (2012). (May 2013 Order at 6.) Martinez held that"when a State requires a
prisoner to raise a claim of ineffective assistance at trial in a collateral proceeding, a prisoner
may establish cause for procedural default ofsuch claim" when "appointed counsel in the initialreview collateral proceeding ... was [constitutionally] ineffective." 566 U.S. at 14(citation
omitted). This court denied Petitioner's motion, concluding that "the fact that the Supreme Court
changed precedent more than a decade" after the original denial ofPetitioner's habeas petition
"is not an extraordinary circumstance warranting relief under Rule 60(b)(6)." (May 2013 Order
at 8.) Petitioner now argues that the Supreme Court's recent decision in Buck implies that
Martinez can be applied retroactively, and that this court should reconsider its rejection of
Martinez as an "extraordinary circumstance" meriting relief under Rule 60(b). Pet'r Mot.
Petitioner has misconstrued the holding in Buck. While the Buck Court did "conclude
that Martinez... applpes] to [the habeas petitioner's] claim," the Court noted that the
respondent had failed to raise the issue ofretroactivity in the lower courts, and had consequently
waived the argument for the purpose of Supreme Court review. See 137 S. Ct. at 780. Indeed,
the Court explicitly stated that Buck does not create any binding rule regarding the retroactive
application of Martinez. Id.("We reach no broader determination concerning the application of
rMartmezl."). Thus, because the application of Martinez was contingent on the parties' waiver
ofthe retroactivity argument, and because this application was explicitly limited to Buck,
Petitioner's Motion fails to provide any relevant grounds for reconsideration ofthe court's May
2013 Order. Petitioner's claim for reconsideration is denied.
For the foregoing reasons, Petitioner's Motion(Dkt. 78)is DENIED. Petitioner has
violated the court's clear warning about successive habeas petitions, a warning issued less than
six months before Petitioner signed and sent his Motion. The court must therefore escalate the
consequences of non-compliance: Petitioner is hereby cautioned that filing additional
meritless motions may, on notice and opportunity to be heard,lead the court to enjoin him
from further filings in this matter without first obtaining permission from the court.^ The
Clerk of Court is respectfully directed to send a copy ofthis order to pro se Petitioner.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
/NICHOLAS G. GARAUFI
United States District Judge
^"The district courts have the power and obligation to protect the public and the efficient administration ofjustice
from individuals who have a history of litigation entailing vexation, harassment and needless expense to other
parties and [imposing] an unnecessary burden courts and their supporting personnel." Lau v. Meddaugh.229 F.Sd
121, 123(2d Cir. 2000)(internal quotation marks, alterations, and citation omitted).
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