Aviles v. Capra

Filing 21

OPINION & ORDER: On 11/22/2014, Petitioner filed a 20 second motion for Rule 60(b) relief, in which he reasserts various claims regarding the competence of his appellate counsel on direct appeal of his state court criminal conviction. The Court has already considered each of the arguments that Petitioner raises in his new motion, and not one of them turns on "newly discovered evidence" or "mistakes or inadvertence," as petitioner so claims. For these rea sons, as well as those additional reasons contained in the Court's orders dated 9/26/2014, and 11/13/2014, Petitioner's 20 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. SO ORDERED by Judge Allyne R. Ross, on 12/5/2014. C/mailed by Chambers. (Latka-Mucha, Wieslawa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

··, ~. . '"'·

....

!. ·~ ; .

.

x
13-CV-1153 (ARR)

WILFREDO AVILES,

NOT FOR PRINT OR
ELECTRONIC
PUBLICATION

Petitioner,
-against-

OPINION & ORDER

MICHAEL CAPRA,
Respondent.

x
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. Dkt. #16. On October 20,
2014, petitioner filed a motion to vacate the court's prior judgment pursuant to Federal Rule of
Civil Procedure 60(b), which the court denied on November 13, 2014. Dkt. #19. On November
22, 2014, petitioner filed a second motion for Rule 60(b) relief, in which he reasserts various
claims regarding the competence of his appellate counsel on direct appeal of his state court
criminal conviction. Dkt. #20.
The court has already considered each of the arguments that petitioner raises in his new
motion, and not one of them turns on "newly discovered evidence" or "mistakes or
inadvertence," as petitioner so claims. For these reasons, as well as those additional reasons
contained in the court's orders dated September 26, 2014, and November 13, 2014, petitioner's
motion is denied.

1

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.

SO ORDERED.

/S/ Judge Allyne R. Ross
udge
Dated:

December-J3 , 2014
Brooklyn, New York

2

'

}

Service List
Petitioner, Pro Se
Wilfredo Aviles
08A6675
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562