Price v. Walsh

Filing 24

ORDER: For the reasons set forth in the attached memorandum and order, Petitioner's motion 22 to vacate is DENIED. The Clerk of Court is respectfully directed to mail a copy of this order to the pro se litigant. Ordered by Judge LaShann DeArcy Hall on 12/29/2021. (Williams, Erica)

Case 1:10-cv-04789-LDH Document 24 Filed 12/29/21 Page 1 of 2 PageID #: 883

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LARME PRICE,
v.

Petitioner,

MEMORANDUM AND ORDER
10-CV-4789

WARDEN JAMES J. WALSH,
Respondent.
LASHANN DEARCY HALL, United States District Judge:

Petitioner Larme Price, proceeding pro se, brings this petition pursuant to 28 U.S.C. §
2254 for a writ of habeas corpus vacating his February 11, 2004 conviction. By memorandum
and order dated September 30, 2014, Judge Townes denied the petition as untimely. Five years
later, on September 30, 2019, Petitioner moved for reconsideration of Judge Townes’ order
pursuant to Federal Rule of Civil Procedure 59, arguing that he was unable to timely file his
application for habeas relief due to alleged mental health limitations. (See Mot. Reconsid. ¶ 6,
ECF No. 21.) Although untimely, the Court entertained Petitioner’s motion. Nevertheless, by
order dated November 17, 2020, this Court denied Petitioner’s motion for reconsideration. On
January 14, 2021, Petitioner moved to vacate Judge Townes’ order denying habeas relief
pursuant to Federal Rule of Civil Procedure 60(b)(6). (See Mot. Vac., ECF No. 22.)
Relief under Rule 60(b)(6) is only available in “extraordinary circumstances.” Buck v.
Davis, 137 S. Ct. 759, 777–778 (2017) (citation omitted). “In determining whether extraordinary
circumstances are present, a court may consider a wide range of factors[,]” such as ‘“the risk of
injustice to the parties’ and ‘the risk of undermining the public's confidence in the judicial
process.’” Id. at 778 (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863–
864 (1988).
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Case 1:10-cv-04789-LDH Document 24 Filed 12/29/21 Page 2 of 2 PageID #: 884

Here, Petitioner argues that this Court should vacate Judge Townes’ September 30, 2014
order denying his habeas petition because he did not receive it and thus was deprived of his right
to file a timely appeal of that order. (Mot. Vac. at 3.) Federal Rule of Appellate Procedure 4(a),
however, clearly provides that “the time to file an appeal runs for all parties from the entry of the
order disposing of the last such remaining motion . . . to alter or amend the judgment under Rule
59.” Fed. R. App. P. 4(a)(4)(A)(iv). The Supreme Court has instructed that “the disposition of
[a Rule 59 motion] restores th[e] finality of the original judgment, thus starting the 30-day appeal
clock.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) (internal quotation marks and citation
omitted). Petitioner had 30-days from the date of this Court’s November 17, 2020 denial of
Petitioner’s motion for reconsideration to raise an appeal, therefore curing any harm that may
have resulted from delay in receiving Judge Townes’ order. Accordingly, Petitioner’s motion to
vacate is DENIED.
SO ORDERED.
Dated: Brooklyn, New York
December 29, 2021

/s/ LDH
LaSHANN DeARCY HALL
United States District Judge

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