Sabino v. NYS Division of Parole

Filing 18

ORDER: Because Petitioner has neither responded to the court's order to show cause, nor demonstrated his entitlement to relief under Rule 60(b), the 17 Motion for Reconsideration is DENIED. No Certificate of Appealability shall issue b ecause Petitioner has failed to make a "substantial showing of the denial of a constitutional right," as required under 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully DIRECTED to mail a copy of this Order to Petitioner at the address specified in the Motion for Reconsideration. So Ordered by Judge Nicholas G. Garaufis on 1/20/2017. (c/m to pro se at Franklin Correctional Facility) (Lee, Tiffeny)

Vlf

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

SAUL SABINO,
ORDER

Petitioner,

13-CV-3375(NGG)

-against-

NYS DIVISION OF PAROLE,

Respondent.
-X

NICHOLAS 0. GARAUFIS,United States District Judge.

Petitioner Saul Sabino initiated.this action pro se on June 13, 2013,seeking a writ of

habeas corpus under 28 U.S.C. § 2254 (the "Petition"). (Pet.(Dkt. 1).) On October 21,2013,

the court issued an order explaining that the Petition appeared to be time-barred under 28 U.S.C.
§ 2244(d)(1). (Oct. 21,2013, Mem.& Order(Dkt. 4).) The court directed Petitioner to show
cause as to why the Petition should not be dismissed on those grounds. (Id at 5-6.) The court

granted three requests for extensions oftime, and sua sponte granted an additional extension
nunc pro tune, giving Petitioner until November 15, 2014,to file his response. (See Oct. 14,

2014, Order(Dkt. 14.).) Petitioner failed to respond, and so the court dismissed the proceeding
as untimely. (Jan. 8,2015, Order(Dkt. 15).) On May 24,2016,Petitioner filed a Motion for

Reconsideration, requesting that his case be reopened. (Mot.for Reconsid.(Dkt. 17).) Petitioner
explained that he did not respond to the order to show cause "[b]ecause at the time ofthe due
date ofNovember 15,2014,[Petitioner] was incarcerated in Saratoga County Jail." (Id)

Federal Rule of Civil Procedure 60(b)"allows a party to seek relieffrom a final
judgment,and request reopening of his case, under a limited set ofcircumstances including
fi aud, mistake, and newly discovered evidence." Gonzalez v. Crosbv, 545 U.S. 524,528(2005).
:

1

There are two avenues under which Petitioner might plausibly seek reconsideration. The court
finds that neither avenue entitles Petitioner to relief in this instance.

To the extent that Petitioner requests reconsideration based on "mistake, inadvertence,
surprise, or excusable neglect" under Rule 60(b)(1), his motion was due "no more than a year

after the entry ofthe judgment." Fed. R. Civ. P. 60(b)(c)(l). Petitioner's motion is therefore
untimely because the May 24,2016,filing date was more than a year after judgment was entered
on January 13, 2015(see Clerk's J.(Dkt. 16)).

Petitioner's only recourse, therefore, is the catch-all provision that allows reconsideration
based on "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6). A motion under
Rule 60(b)(6)is not subject to the one-year filing deadline, and need only be "made within a

reasonable time" after judgment. Id. R.60(c)(1). "[SJuch motions are 'generally not favored,"'

however,"and are 'properly granted only upon a showing of exceptional circumstances.'"
Sanders v. Walsh. No. 04-CV-4013(NGG),2014 WL 1514353, at *2(E.D.N.Y. Apr. 16,2014)

(quoting Pichardo v. Ashcroft. 374 F.3d 46,55(2d Cir. 2004)). Petitioner has failed to show any
such exceptional circumstances. The only explanation he offers for the delay is that he was
incarcerated when the response was due, but this impediment is inherent in the very nature ofthe
habeas remedy.

28 U.S.C. § 2254 (authorizing petitions filed by "a person in custody").

The court acknowledges that Petitioner has faced hardship of various kinds before and
after filing the Petition, and applauds Petitioner's efforts to pursue higher education and support
his community, as detailed in his filings with the court. Be that as it may.Petitioner was ordered
more than three years ago to explain why the Petition should not be dismissed on grounds of

untimeliness; Petitioner has since written to the court on six separate occasions regarding the

timing of his response or a change in his address, but he has never attempted a response to the
order itself.

Because Petitioner has neither responded to the court's order to show cause, nor
demonstrated his entitlement to relief xmder Rule 60(b), the Motion for Reconsideration

(Dkt. 17)is DENIED. No Certificate of Appealability shall issue because Petitioner has failed to
make a "substantial showing ofthe denial of a constitutional right," as required under 28 U.S.C.

§ 2253(c)(2). The Clerk of Court is respectfully DIRECTED to mail a copy ofthis Order to
Petitioner at the address specified in the Motion for Reconsideration.

SO ORDERED.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
JanuarYf^Z), 2017

NICHOLAS G. GARAUFIS

United States District Judge