Azaz v. Artus
ORDER denying 19 Motion to Vacate ; denying 26 Motion for Leave to File; denying 26 Motion for Extension of Time to Amend. For the reasons stated in the attached Memorandum & Order, petitioner's motions are denied in their entirety. Th e respondent is requested, after a search of prison records to ascertain petitioner's current address, to serve a copy of this order on petitioner and to file proof of service with the court forthwith. The Clerk of Court is respectfully requested to close the case. Ordered by Judge Kiyo A. Matsumoto on 1/7/2014. (Keefe, Reed)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
SUPERINTENDENT DALE ARTUS,
MATSUMOTO, United States District Judge:
Nagmeldeen Azaz filed a petition for a writ of habeas
corpus on September 4, 2009, through his then-counsel Stephen N.
The petition was referred to Chief Magistrate Judge
Steven M. Gold, who recommended that the petition be denied in
After considering Judge Gold’s Report and
Recommendations (“R&R”) and petitioner’s objections to it, the
undersigned adopted the R&R in full and denied the petition on
October 19, 2012.
(Order Adopting R&R, ECF No. 17.)
was entered by the Clerk of Court on October 23, 2012, and no
appeal of the decision was taken.
Petitioner, now proceeding
pro se, filed a motion on October 4, 2013 to vacate the denial
of his habeas motion, to extend or reopen the time to file an
appeal, or, to be granted a certificate of appeal.
Mot.,” ECF No. 19.)
On December 4, 2013, petitioner
subsequently moved for permission to serve interrogatories on
his former attorney and for an extension of time to file an
amended motion or to file a reply to respondent’s opposition.
(“Pet’r Mot. to Amend,” ECF No. 26.)
For the reasons set out
below, petitioner’s motions are denied in their entirety.
Motion to Vacate the Judgment
Petitioner moves pursuant to Federal Rule of Civil
Procedure 60(b)(4) and (b)(6)to vacate denial of his habeas
Petitioner, in essence, rests his Rule 60 argument on
three grounds: 1) that because the court did not issue or deny a
certificate of appealability in this case, the habeas judgment
is void; 2) that the court erred in not considering petitioner’s
procedurally barred claims on the merits; and 3) that his habeas
counsel was defective in failing to make certain arguments and
in failing to appeal the habeas determination after petitioner
paid him a fee to do so.
Under Federal Rule of Civil Procedure 60(b), a court
may exercise its discretion to relieve a party from a final
judgment for the following reasons: (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly discovered evidence;
A Rule 60(b) motion to vacate a denial of a habeas petition may be evaluated
on the merits where the motion “attacks the integrity of a previous habeas
proceeding,” rather than the petitioner’s underlying conviction. Harris v.
United States, 367 F.3d 74, 82 (2d Cir. 2004) (emphasis in original omitted).
A “Rule 60(b) motion that attacks the underlying conviction presents a
district court with two procedural options: (i) the court may treat the Rule
60(b) motion as ‘a second or successive habeas petition’ [to be transferred
to the Second Circuit] . . . or (ii) the court may simply deny the portion of
the motion attacking the underlying conviction as beyond the scope of Rule
60(b).” Id. (internal quotation marks and citation omitted). The instant
motion appears to be challenging the decisions of the habeas court, rather
than petitioner’s original conviction, and thus may be evaluated under Rule
(3) fraud; (4) the judgment is void; (5) the judgment has been
satisfied; or (6) any other reason justifying relief from the
operation of the judgment.
“Motions under Rule 60(b) are
addressed to the sound discretion of the district court and are
generally granted only upon a showing of exceptional
Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir.
1990), aff’d, 501 U.S. 115 (1991).
Moreover, it is well-settled
that motions for reconsideration may not be used to relitigate
issues already decided by the court.
See, e.g., Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Davidson v.
Scully, 172 F. Supp. 2d 458, 461-62 (S.D.N.Y. 2001).
Petitioner’s Rule 60 motion is without merit.
Petitioner’s first contention – that the lack of a certificate
of appealability determination by this court renders the
judgment void – is incorrect.
The court can find no authority
for the proposition that the lack of a certificate of
appealability voids a judgment.
See City of New York v.
Mickalis Pawn Shop, LLC, 643 F.3d 114, 138 (2d Cir. 2011) (“A
judgment is void under Rule 60(b)(4) . . . if the court that
rendered it lacked jurisdiction of the subject matter, or of the
parties, or if it acted in a manner inconsistent with due
process of law” (internal citation omitted)).
especially so as a party denied a certificate of appealability
may appeal directly to the Second Circuit for a certificate
pursuant to Rule 11(a) of the Rules Governing Section 2254
In any event, a certificate of appealability is not
warranted in petitioner’s case.
Such certificates may be
granted only if “the applicant has made a substantial showing of
the denial of a constitutional right.”
28 U.S.C. § 2253(b)(2).
Having reviewed the habeas petition and attendant briefing, the
court finds that no such showing has been made as to any of the
claims raised in the petition and that a certificate may
therefore not be granted.
The remainder of petitioner’s Rule 60 motion is also
Petitioner points to no new facts or law that
would cause the court to reconsider its decisions on his
procedurally barred claims. 2
See Shrader, 70 F.3d at 257
(“reconsideration will generally be denied unless the moving
party can point to controlling decisions or data that the court
In both his Rule 60 motion and his motion to file
an amended motion, petitioner identifies People v. Feingold, 7
N.Y.3d 288 (2006), as a case that was overlooked by this court
and that constitutes cause for his procedural default on the
The three claims that were found to be procedurally defaulted were: (1)
insufficiency of the evidence with respect to petitioner’s depraved
indifference murder conviction, (2) the trial court’s violation of
petitioner’s privilege against self-incrimination, and (3) due process
violations due to prosecutorial misconduct and a biased interested witness
charge. (See Order Adopting R&R at 7 n.3.) Even though petitioner did not
object to the portion of the R&R finding that several of his claims were
procedurally barred, the court found that it would have adopted Judge Gold’s
recommendations regarding the defaulted claims under either clear error
review or under the de novo standard of review that would have been applied
had petitioner objected. (See Order Adopting R&R at 7, 10-16.)
legal sufficiency claim to be excused.
(See ECF No. 19-1, at
Feingold was decided during the pendency of
petitioner’s state court appeals and clarified New York’s law on
depraved indifference murder, the charge of which petitioner was
convicted for the death of his infant son.
contention that Feingold was not considered during the habeas
proceeding is incorrect.
In the alternative to his decision
that petitioner’s legal sufficiency claim was procedurally
barred, Judge Gold also considered the claim on the merits in
light of the standard articulated in Feingold and found that
claim to be unmeritorious.
(R&R at 20-22.)
This court then
adopted Judge Gold’s findings both on the procedural bar ground
and on the merits.
(Order Adopting R&R at 17-18.)
petitioner has presented no controlling decisions overlooked by
the court and his motion for reconsideration on that basis is
Finally, petitioner argues in his Rule 60 motion that
his habeas counsel was “fundamentally egregious and prejudicial”
because Mr. Dratch’s habeas brief and objections were inadequate
and because Mr. Dratch did not file an appeal.
also without merit.
These claims are
“To obtain relief under Rule 60(b)(6), a
habeas petitioner must show that his lawyer abandoned the case
and prevented the client from being heard, either through
counsel or pro se.”
Harris, 367 F.3d at 77.
In order to
satisfy this standard, “a lawyer’s failures must be so egregious
and profound that they amount to the abandonment of the client’s
case altogether, either through physical disappearance, or
Id. at 81 (citing Vindigni v.
Meyer, 441 F.2d 376 (2d Cir. 1971); United States v. Cirami, 563
F.2d 26, 34-35 (2d Cir. 1977)).
Clearly, neither Mr. Dratch’s
habeas briefing (ECF Nos. 2, 12) nor his objections to the R&R
(ECF No. 16) constitute this type of total abandonment of
Petitioner’s argument that he paid Mr. Dratch to file
an appeal on his behalf and that Mr. Dratch’s failure to do so
also amounts to abandonment warranting Rule 60(b)(6) relief is
The correspondence petitioner submits to
the court belies his claim that he compensated Mr. Dratch for
filing an appeal; instead, Mr. Dratch’s letters indicate that
petitioner paid a fee for objections to be filed to the R&R.
(Pet’r Exs. B, C; ECF No. 19-3, at 37-40.)
Dratch’s responses to petitioner’s inquiries indicate that the
case was not wholly abandoned and, in any event, the lack of
appeal does not call into question the determination made on
petitioner’s habeas petition.
In light of the above reasons, petitioner’s motion for
Rule 60 relief is denied.
Motion to Reopen or Extend the Time to Appeal
Petitioner also moves to either extend or reopen his
time to appeal the denial of his habeas petition.
Rule 11(b) of
the Federal Rules Governing 2254 Cases provides that Federal
Rule of Appellate Procedure 4(a) governs the time to file an
appeal of the determination on a habeas petition.
Rule 4(a), a notice of appeal must be filed within 30 days after
entry of the order or judgment being appealed.
Fed. R. App. P.
Time to appeal may be extended upon an application
showing excusable neglect or good cause made within 30 days
after the time for filing a notice of appeal has expired.
R. App. P. 4(a)(5)(A).
Extensions under this Rule may not
exceed “30 days after the prescribed time or 14 days after the
date when the order granting the motion is entered, whichever is
Fed. R. App. P. 4(a)(5)(C).
The time to appeal may
also be reopened if a party has not received a notice of
judgment within 21 days of the judgment’s entry but only if “the
motion is filed within 180 days after the judgment or order is
entered or within 14 days after the moving party receives notice
under Federal Rule of Civil Procedure 77(d) of the entry,
whichever is earlier” and no party would be prejudiced.
App. P. 4(a)(6).
Petitioner’s motion is not timely under either Federal
Rule of Appellate Procedure 4(a)(5) or (a)(6).
As noted above,
the order denying the habeas petition was rendered on October
The Clerk of Court’s entry of judgment closing the
case was entered on October 23, 2012.
emphasizes that his counsel did not receive notice of the
decision until January 21, 2013 (see Pet’r Ex. E, ECF No. 19-3,
at 49), the court’s electronic filing system records indicate
that notice of the decision was sent to two email addresses
associated with Mr. Dratch on October 19, 2012 at 10:52 PM and
notice of the entry of judgment was sent to the same email
addresses on October 23, 2012 at 10:19 AM.
Petitioner’s motion, dated September 24, 2013, was
made, therefore, approximately 336 days after judgment was
entered in the case and petitioner’s counsel received notice of
Even had petitioner and his counsel received notice of the
disposition of the case much closer to the date of petitioner’s
motion, this court would nonetheless be unable to reopen the
The 180 day period after entry of judgment,
during which a motion to reopen the time to appeal is
permissible, would have expired in April of 2013.
Court has held that the time for a habeas petitioner to appeal
under Federal Rule of Appellate Procedure 4 is a jurisdictional
limitation that may not be extended due to “unique
circumstances” or other equitable considerations.
Russell, 551 U.S. 205, 213 (2007); see also Fed. R. Civ. P.
77(d)(2) (“Lack of notice of entry does not affect the time for
appeal . . . or authorize the court to relieve[ ] a party for
failing to appeal within the time allowed, except as allowed by
Federal Rule of Appellate Procedure 4(a).”).
Petitioner is thus
barred from extending or reopening his time to appeal the
decision on his habeas petition.
III. Motion for Extension of Time to File a Reply or An
Petitioner’s motion for an extension of time to file a
reply or an amended Rule 60 motion is also denied.
reasons discussed above, the court does not believe a reply
would enhance its understanding of petitioner’s motion.
Similarly, in light of the above rulings, petitioner’s request
for interrogatories to be served on Mr. Dratch is moot. Finally,
petitioner argues that an amended Rule 60 motion would serve to
expand upon his claims regarding the legal sufficiency of his
depraved indifference murder conviction and the adequacy of his
As the rulings in this order dispose of those
issues, an amended motion is not warranted and the motion is
For the foregoing reasons, petitioner’s motions are
Respondent is respectfully requested to perform a
search of prison records to determine whether petitioner remains
incarcerated at the institution listed on the docket sheet, to
serve petitioner at that address or at his current place of
incarceration, and to file proof of service with the court.
January 7, 2014
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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