Bush v. Portuondo

Filing 37

ORDER DENYING MOTION, The 25 Motion for relief under Rule 60 is denied. So Ordered by Judge Jack B. Weinstein on 3/7/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

EUGENE BUSH,

ORDER DENYING MOTION

02-CV-2883(JBW)

Plaintiff,

- againstLEONARD PORTUONDO,
SUPERINTENDENT,
Defendant.

Jack B. Weinstein,Senior United States District Judge:
Petitioner

Eugene Bush

represented by: Joel Mark Stein
Law Offices of Joe! M.Stein, Esq.
30 Wall Street,
Floor
New York,NY 10005

[phone]
Fax: [phone]

Email: [e-mail]
Respondent
Leonard Portuondo

Superintendent

represented by Morgan James Dennehy
Kings County District Attorney's Office
350 Jay Street
Brooklyn, NY 11201
[phone]
Fax: [phone]

Email: [e-mail]

This court cannot adjudicate plaintiffs complaint of an unconstitutionally conducted state
trial unless the Court of Appeals for the Second Circuit grants petitioner permission to bring a
second petition for a writ of habeas corpus. I respectfully suggest that such permission be
granted by the Court of Appeals for the Second Circuit.

The chief witness for the prosecution did not inform the jury that he had made a relevant

deal with an upstate district attorney that might have affected his testimony. This issue has never
been the basis for an adjudicated habeas corpus petition in federal court.
Defendant moves under Rule 60(b)(6) ofthe Federal Rules of Civil Procedure to set aside

this court's denial of his first petition for a writ of habeas corpus. See 28 United States Code
§2254; Docket("Doc")32,01/09/17. He was convicted in a New York State court of murder in

the second degree committed on April 1,1995, and possession of the gun with which the murder
was committed.

His original petition in federal court for a writ of habeas corpus was dismissed by this
court after a hearing; no certificate of appealability was granted. See Doc 11, 11/13/2003; 28
U.S.C. §2254.

An appeal was dismissed. See Doc 15, 06/25/2004. Petitioner then moved in the Court

of Appeals for the Second Circuit for permission to file a successive petition. See Doc. 19,
01/24/2007. The motion was denied. Id.

An informal letter application to revisit the case was denied by this court. See Doc 22,
04/16/2013.

Petitioner's motion in the Court of Appeals for the Second Circuit for permission to bring
a second petition (on grounds different from those relied on now) was denied. See Doc 24,
01/05/2016.

Movant and his counsel were fully heard on the present motion under Rule 60(b)(6) to
vacate the November 29, 2003 dismissal of his first petition. See Minute entry Doc 35,
02/28/2017; transcript hearing 02/28/2017

passim.

The movant's ground for his present motion is based on a failure of the prosecution to
inform defense counsel at the trial that the key witness had a cooperation agreement. The
agreement was made with an upstate district attorney, and apparently was not known by the
prosecuting Kings County attorney in the instant case. See TRpp.6,10,12-14,19,24, 33; letter
dated March 17, 2014 to movant from State ofNew York Grievance Committee for the Ninth

Judicial District. This was a different ground from those pressed in the original petition - - voir
dire error, failure to suppress petitioner's statement to police and limitation of defense crossexamination. See TR. p. 28.
The motion to vacate under Rule 60 is denied. As explained by the court orally at the
hearing:

1. The motion is untimely. It comes some ten years after the Court of Appeals for the
Second Circuit denied a motion to file a successive petition, with an inadequate legal
excuse for the delay. Petitioner seeks to avoid any statutory or rule time barrier by an
actual innocence claim. See TR. pp. 40-41. That defense does not avoid the need for

permission from the Court of Appeals for the Second Circuit to bring a second
petition.

2. The basis for this Rule 60 motion is information about the censure ofthe upstate

prosecutor, apparently for failing to reveal a cooperation agreement with the chief
prosecution witness in the downstate prosecution of the instant case. The failure
allegedly came to petitioner's attention after this court denied his first petition. This

is not a ground for relief under Rule 60. That rule is designed to protect against
adjudication errors, not against events independent of, or subsequent to, the court's

decision. This motion is, in effect, a habeas corpus petition. It cannot be
characterized as a Rule 60 motion.

The appropriate procedure is to move in the Court of Appeals for the Second Circuit for
permission to bring a successive petition. This court has no power to entertain a second petition
without consent from the Court of Appeals for the Second Circuit. See 28 U.S.C. §
2244(b)(3)(A).
The grounds for a second petition may to be substantial. But this court has no power to

evaluate them without permission from the Court of Appeals for the Second Circuit.
The trial court respectfully recommends that a second petition be permitted. There is a
possible claim ofinnocence as well as a claim of decisive misleading of court and jury by the
chief witness.
The motion for relief under Rule 60 is denied.
SO ORDERED.

Jack BTweinstein

SeniOT United States District Judge

Date: March?,2017
Brooklyn, New York