Figueroa v. Walsh

Filing 82

MEMORANDUM & ORDER re 80 Motion for Reconsideration. The court DENIES Petitioner's motion for reconsideration (Dkt. 80) and finds that NO CERTIFICATE OF APPEALABILITY SHALL ISSUE with regard to both this Order and the Court's July 11, 2017, Order (Dkt. 79). 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 7/28/2017. (c/m to pro se) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

WILLIAM FIGUEROA,
Petitioner,
MEMORANDUM & ORDER

-againstOO-CV-1160(NGG)
JAMES J. WALSH,

Respondent.
X

NICHOLAS G. GARAUFIS,United States District Judge.

On July 11, 2017,the court issued an order(the "July Order")denying a motion for
reconsideration filed by pro se Petitioner William Figueroa under Federal Rule of Civil
Procedure 60(b), the latest in a string of unsuccessful collateral attacks on Petitioner's 1991
conviction in New York State court. (Jul. 11,2017, Order(Dkt. 79); see also Nov. 9, 2016,

Order(Dkt. 75); May 16, 2013, Order (Dkt. 69); Mar. 3, 2010, Order(Dkt. 52); May 1,2008,
Order(Dkt 42).) Before the July Order was docketed. Petitioner submitted a letter
supplementing his Rule 60(b) motion (the "60(b) Supplement"). (Pet'r Suppl. to Mot. for
Recons.("Pet'r Suppl.")(Dkt. 80).) After the July Order was docketed. Petitioner filed a Notice
of Appeal. (Not. of Appeal(Dkt. 81).) The court construes the 60(b) Supplement as a new
motion for reconsideration, and finds that it must be denied for reasons substantially similar to

those laid out in the July Order. The court finds that no Certificate of Appealability shall issue as
to the July Order or as to this Order.
I.

PETITIONER'S NEW MOTION FOR RECONSIDERATION

The court assumes familiarity with the underlying facts, procedural history, and relevant
law. In May 2013,the court rejected Petitioner's Rule 60(b)claim that reconsideration was
merited based on the Supreme Court's decision in Martinez v. Rvan. 566 U.S. 1 (2012). (May

1

16,2013, Order.) In the July 2017 Order, the court rejected Petitioner's argument that
reconsideration ofthat decision was merited based on Buck v. Davis. — U.S. —,137 S. Ct. 759

(2017). (Jul. 11, 2017, Order at 2-4.) In Petitioner's 60(b) Supplement, he once again asserts an
argument under newly decided Supreme Court precedent, arguing that Davila v. Davis.

— U.S. —,137 S. Ct. 2058(2017),"helped define the rule ofthe Supreme Court in addressing

the holding in Martinez" and helps to "establish the extraordinary circumstances require[d] by
Rule"60(b)," thus "warranting]the reopening of[Petitioner's] case here." (Pet'r Suppl. at 2-3.)
Because this claim attacks a prior order from this court rather than Petitioner's underlying
conviction, the claim is properly brought as a new motion under Rule 60(b), and will not be
construed as a successive habeas petition. S^ Harris v. United States, 367 F.3d 74, 79-82

(2d Cir. 2004). However,the 60(b) Supplement fails to provide grounds for reconsideration of
any prior order from this court, and must therefore be denied.
As an initial matter. Petitioner's summary of Davila is inaccurate. Petitioner asserts that
"the change in law worked by Davila/Buck/Martinez ... establish[es] the extraordinary
circumstances require[d] by Rule 60(b)." (Pet'r Suppl. at 3.) As relevant for the present case,
however,the Davila Court merely declined "to extend Martinez to allow a federal court to hear

a... 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." Davila. 137 S. Ct. at 2065. Davila did not instruct that Martinez should be applied
retroactively to Petitioner's case, nor did it create any new rule of constitutional law such that
Petitioner's previously barred claims could now be reviewed by a district court. Thus,Davila
does not provide a basis for reconsideration because it has no effect on the court's reason for

dismissing Petitioner's prior Rule 60(b) motion. The 60(b) Supplement is denied.

II.

CERTIFICATES OF APPEALABILITY

When the district court denies reliefin a habeas action, the court must determine whether

a Certificate of Appealability("COA")shall issue. 28 U.S.C. §§ 2253(c)(1); Fed. R. App.
P. 22(b); 2d Cir. Local R. 22.1(a). A COA "may issue ... only if the applicant has made a
substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In addition,

the COA must "indicate which specific issue or issues satisfy" that standard. Id. § 2253(c)(3).
As the Supreme Court has emphasized:
The COA inquiry ... is not coextensive with a merits analysis. At
the COA stage, the only question is whether... "jurists of reason
could disagree with the district court's resolution of [the
petitioner's] constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed
further."

Buck. 137 S. Ct. at 773 (quoting Miller-El v. Cockrell. 537 U.S. 322, 327(2003)). Under this

standard, the court concludes that a COA shall not issue with regard to either the July 11 Order
or this Order. Both orders resolved Rule 60(b) motions that were premised on inaccurate
characterizations of Supreme Court decisions. For that reason. Petitioner failed to make a

"substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2255(c)(2).
m.

CONCLUSION

For the reasons stated above, the court DENIES Petitioner's motion for reconsideration

(Dkt. 80)and finds that NO CERTIFICATE OF APPEALABILITY SHALL ISSUE with regard
to both this Order and the court's July 11,2017, Order (Dkt. 79). The Clerk of Court is
respectfully directed to send a copy ofthis Order to pro se Petitioner.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn,New York

July % 2017

b
IlCHOLAS G. GARAUFI^

United States District Judge