Payne v. USA

Filing 35

ORDER denying 34 Motion for Reconsideration and to Reopen Case: For the reasons set forth in the attached, Petitioner's motion for Rule 60(b)(6) relief is DENIED. Ordered by Judge Pamela K. Chen on 10/11/2016. (Chan, Grace)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------ADRIAN PAYNE,
Petitioner,
- against -

ORDER DENYING RULE 60(b) MOTION
FOR RELIEF FROM 9/4/2014 ORDER

UNITED STATES OF AMERICA,

No. 11 CV 4859 (PKC)

Respondent.
------------------------------------------------------PAMELA K. CHEN, United States District Judge:
The lengthy procedural history of this habeas action is summarized in the Honorable John
Gleeson’s Order dated September 4, 2014 (“9/4/14 Order”), which denied Petitioner Adrian
Payne’s motion for leave to amend his previously-denied § 2255 petition to add three additional
claims. (Dkt. 30.) 1 These three proposed claims were as follows: (1) that Petitioner’s trial counsel
was ineffective for failing to convey information to Petitioner regarding a possible plea deal; (2)
that the two murder-in-aid-of-racketeering counts of which he was convicted should have been
dismissed as time-barred under the five-year statute of limitations provided by 18 U.S.C. § 3282;
and (3) a nebulous third ground, of which Judge Gleeson stated: “to the extent that it can be
discerned, [it] appears to be yet another argument that [Petitioner’s] murder convictions should
have been dismissed as time-barred.” (Id. at ECF 3-5.) With respect to the second and third
claims, Judge Gleeson denied leave to amend as futile because “on direct review[,] the Second
Circuit already ‘reject[ed] Payne’s contention that the five-year statute of limitations barred his
1

Before filing the instant motion, Petitioner had earlier filed a motion for reconsideration
of the 9/14/14 Order, (Dkt. 31), which Judge Gleeson summarily denied on October 9, 2014.
Petitioner thereafter moved for a certificate of appealability, (Dkt. 32), which the Second Circuit
denied on May 27, 2015 (Dkt. 33). On June 29, 2016, Petitioner filed the instant “Motion to
Reopen 2255 Proceedings Pursuant to Rule 60(b)(6),” seeking relief from Judge Gleeson’s 9/4/14
Order. (Dkt. 34 (“Br.”).) On August 18, 2016, this case was reassigned to me.

prosecution . . . for the murders . . . in the aid of racketeering.’” (Id. at ECF 5 (quoting United
States v. Payne, 591 F.3d 46, 59 (2d Cir. 2010).) It is Judge Gleeson’s rulings on these two claims
that Petitioner seeks to have this Court revisit now. 2
Petitioner seeks relief from Judge Gleeson’s rulings on these two claims under Federal
Rule of Civil Procedure 60(b)(6), which permits a court to “relieve a party or its legal
representative from a[n] . . . order . . . [for] any [ ] reason that justifies relief” aside from the reasons
enumerated in Rule 60(b)(1)-(5) (e.g., mistake, inadvertence, surprise or neglect; newly discovered
evidence; fraud). Petitioner asserts that the Second Circuit’s decision in Matthews v. United States,
622 F.3d 99 (2d Cir. 2010)—which came down after Judge Gleeson’s decision in Petitioner’s
original criminal proceeding, United States v. Hunter, No. 05-cr-188, 2008 WL 268065 (E.D.N.Y.
2008), and the Second Circuit’s affirmance of that decision in Payne, 591 F.3d 46, dated January
5, 2010—constitutes “an intervening change of controlling law” that would have altered the two
courts’ rulings that his murder-in-aid-of-racketeering counts were not time-barred under the fiveyear limitations period in 18 U.S.C. § 3282. (See Br. at ECF 1, 6.)
The Court has reviewed Matthews and disagrees. Matthews did not involve interpretation
of 18 U.S.C. § 3281 or 18 U.S.C. § 3282. 3 Indeed, the Second Circuit made clear that the Matthews

2

Even construing Petitioner’s 60(b)(6) Motion broadly, the Court finds no indication that
Petitioner is challenging the portion of Judge Gleeson’s 9/4/14 Order denying leave to add a claim
that Petitioner’s trial counsel was ineffective for failing to convey information to Petitioner
regarding a possible plea deal. Therefore, the Court does not revisit that ruling here.
3

Section 3281, which provides for no limitations period for any offense “punishable by
death,” was found by Judge Gleeson and the Second Circuit to govern here. See Payne, 591 F.3d
at 59 (“Because § 1959(a)(1) [the murders-in-aid-of-racketeering count for which Petitioner was
convicted] provides that a person who ‘murders’ in aid of racketeering may be ‘punished . . . by
death,’ we conclude that the indictment for that offense ‘may be found at any time without
limitation,’ 18 U.S.C. § 3281.”) By contrast, Section 3282 provides for a five-year limitations
period unless otherwise provided by law, and was the provision that Petitioner unsuccessfully
argued applied to his offenses of conviction.
2

opinion “deals only with the Grand Jury Clause and Federal Rule of Criminal Procedure 7(a)(1).”
Matthews, 622 F.3d at 103 n.1. The Second Circuit in Matthews also reaffirmed Payne’s holding
that “for the purposes of the indefinite limitations period provided by 18 U.S.C. § 3281, an offense
is ‘punishable by death’ when the statute ‘authorizes death as a punishment,’ regardless of whether
the particular defendant is death eligible.” Id. Thus, Matthews is not only not an “intervening
change of controlling law,” but it actually reaffirmed the key holding in Payne that Petitioner’s
two murder-in-aid-of-racketeering counts are considered “punishable by death” within the
meaning of 18 U.S.C. § 3281 and thus not subject to the Section 3282 five-year limitations period.
CONCLUSION
For the foregoing reasons, Petitioner’s motion for Rule 60(b)(6) relief is DENIED.

SO ORDERED.
/s/ Pamela K. Chen_________
Pamela K. Chen
United States District Judge
Dated: October 11, 2016
Brooklyn, New York

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