Kearney v. Graham

Filing 90

MEMORANDUM AND ORDER, denying Kearney's 89 Motion to Vacate Judgment, Pursuant to Fed. R. Civ. P., Rule 60(b)(6), 28 U.S.C.A. Kearney, furthermore, is ordered to show cause, within thirty (30) days from the date of this Order, why he should no t be barred from filing anything further in this action without first obtaining permission from this Court to do so. Nothing herein shall be construed to prohibit plaintiff from filing an appeal of this Order. Nevertheless, the Court certifies pursua nt to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of appeal. Since Kearney failed to make a "substantial showing of the denial of a constitutional right," a Certificate of Appealability shall not issue. Ordered by Judge Carol Bagley Amon on 8/15/2017. c/m to petitioner. (Layne, Monique)

FILED
IN CLERK'S OFFICE

US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

*

RICHARD KEARNEY,

BROOKLYN OFFICE

Petitioner,

AUG 15 2017

★

EASTERN DISTRICT OF NEW YORK

NOT FOR PUBLICATION
MEMORANDUM & ORDER

- against -

06-CV-6305 (CBA)

H. GRAHAM, Superintendent,
Respondent.

AMON, United States District Judge:
On December 30,2016, pro se petitioner Richard Kearney filed a motion under Rule 60(b)

seeking reconsideration of the Court's May 17,2016, Order, (D.E. # 84), which in tum denied his
previous Rule 60(b) motion dated February 16, 2016, (D.E. # 83). fSee D.E. # 89.) The instant
Rule 60(b) motion is Kearney's fifth. ( ^ D.E. # 60; D.E. # 73; D.E. # 78; D.E. # 83; D.E. # 89).

Underlying all of these motions is Kearney's request to reopen the Court's October 30, 2008,
Judgment denying his petition for a writ of habeas corpus. (D.E. # 60-61.) Kearney appealed
each of this Court's Orders denying his various motions, and in each case the Second Circuit

dismissed the appeals. (See D.E. # 70 (dismissing appeal of denial of first motion); D.E. # 77

(dismissing appeal of denial of second motion); D.E. # 82 (dismissing appeal of denial of third
motion); D.E. # 88 (dismissing appeal of denial of fourth motion).)
In his fifth motion for reconsideration presently before the Court, like the fourth and third
motions that preceded it, Kearney (1) reiterates his argument that his first Rule 60(b) motion was
timely, (see, e.g.. D.E. # 89 at 7-9, 12-21; D.E. # 83 at 5, 7-8; D.E. # 78 at 3-7), (2) includes case

law (unmoored from any factual development) articulating legal standards regarding the Due
Process Clause, the Equal Protection Clause, and judicial powers, (D.E. # 89 at 3-5), and (3)
reargues his assertion that the district court erred in dismissing his habeas petition, (id. at 9-11).

s/Carol B. Amon