Aviles v. Capra
OPINION & ORDER: On 9/26/2014, the Court 16 denied the Petition for a Writ of Habeas Corpus filed by the pro se petitioner, Wilfredo Aviles, pursuant to 28 U.S.C. § 2254. On 10/20/2014, Petitioner moved to vacate the Court 9;s prior Judgment pursuant to Federal Rule of Civil Procedure 60(b). Petitioner's 18 motion is denied. Because petitioner has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c) (2), the Court declines to issue a certificate of appealability. The Court notes that upon the entry of this Order, the time to appeal the Court's 9/26/2014 decision begins to run. SO ORDERED by Judge Allyne R. Ross, on 11/13/2014. C/mailed by Chambers to pro se Petitioner. (Latka-Mucha, Wieslawa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
WILFREDO A VILES,
NOT FOR PRINT OR
OPINION & ORDER
ROSS, United States District Judge:
On September 26, 2014, the court denied the petition for a writ of habeas corpus filed by
the prose petitioner, Wilfredo Aviles, pursuant to 28 U.S.C. § 2254. Opinion & Order, Dkt. #16.
On October 20, 2014, petitioner moved to vacate the court's prior judgment pursuant to Federal
Rule of Civil Procedure 60(b). In his motion, petitioner argues that he is entitled to habeas relief
because of errors allegedly committed by his appellate counsel in state court and evidence
allegedly demonstrating his actual innocence. For the reasons set forth below, the court denies
Petitioner also seeks relief under the All Writs Act, 28 U.S.C. § 165l(a), in the nature of writs of coram nobis and
audita querela. Such writs have been formally abolished in federal civil cases, see Fed. R. Civ. P. 60(e), although
there remain exceptional circumstances with respect to criminal convictions in which the writs may lie. See United
States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam) (indicating that audita querela "is probably available
where there is a legal, as contrasted with an equitable, objection to a conviction that has arisen subsequent to the
conviction and that is not redressable pursuant to another post~conviction remedy" or "might be deemed available if
[its] existence were necessary to avoid serious questions as to the constitutional validity" of the habeas statutes)
(internal quotation marks omitted); Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005) (indicating that
coram nobis may be available to review conviction of prisoner who is no longer in custody). Because no such
exceptional circumstances are present here, the court reviews petitioner's motion solely under Rule 60(b).
she had previously viewed petitioner's picture in a photo array. Second, petitioner argues that his
actual innocence is demonstrated by the fact that the State of New York has not prosecuted either
of the two men whom witnesses testified were with petitioner at the scene of the crime.
The court rejected all but one of the claims contained in petitioner's Rule 60(b) motion in
the court's original denial of habeas relief. See Opinion & Order 11 (actual innocence); id. at 17
n.5 (first trial transcript); id. at 19-21 (petitioner's arrest). As petitioner's arguments in his
motion are indistinguishable from those contained in his habeas petition, the court sees no reason
to depart from its previous holdings.
The court also declines to vacate its previous judgment based on petitioner's argument
regarding the allegedly suggestive procedure that enabled Huggins to identify petitioner in the
police lineup. This argument appears in support of petitioner's ineffective assistance claim for
the first time in his Rule 60(b) motion. For this rea8on alone, denial is warranted. See Philips
Lighting Co., 2014 WL 4274182, at *5.
The court would reach the same conclusion even if it were to consider petitioner's
argument on the merits. To succeed on his suggestiveness claim in state court, petitioner would
have had to show that, under the totality of the circumstances, the "identification procedure
unnecessarily create[ d] 'a very substantial likelihood of irreparable misidentification."' Brisco v.
Ercole, 565 F.3d 80, 90 (2d Cir. 2009) (quoting Simmons v. United States, 390 U.S. 377, 384
(1968)). In this case, Huggins failed to identify petitioner's picture in a photo array that she was
shown on June 22, 2006. Opinion & Order 4. It was not until four months later, on October 19,
2006, that Huggins identified petitioner in a police lineup. Id. at 3. Given the significant passage
of time between the two identification procedures, it is highly unlikely that the photo array had
any effect on Huggins's ability to identify petitioner in the lineup. Petitioner's suggestiveness
claim would not have succeeded on the merits, and thus appellate counsel was not ineffective for
failing to raise the issue on appeal. See King v. Greiner, 210 F. Supp. 2d 177, 182 (E.D.N.Y.
2002) ("On appeal, counsel is not required to argue every non-frivolous issue; rather, the better
strategy may be to focus on a few more promising issues sq as not to dilute the stronger
arguments with a multitude of claims .... [I]nadequate performance is established only if
counsel omitted significant and obvious issues while pursuing issues that were clearly and
significantly weaker.") (citing Jones v. Barnes, 463 U.S. 745, 751-53 (1983)).
For the foregoing reasons, petitioner's motion is denied. Because petitioner has failed to
make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), the
court declines to issue a certificate of appealability. The court notes that upon the entry of this
order, the time to appeal the court's September 26, 2014 decision begins to run.
/S/ Judge Allyne R. Ross
Allyne R. Ros
United States District Judg
November \1.. , 2012
Brooklyn, New York
Pro Se Petitioner
Sing Sing Correctional Facility
3 54 Hunter Street
Ossining, NY 10562
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