Arias v. Connolly
MEMORANDUM & ORDER denying Petitioner's 13 Motion to Vacate. So Ordered by Judge Nicholas G. Garaufis on 11/20/2017. (c/m to pro se petitioner) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
WILLIAM CONNOLLY,Superintendent, Fishkill
NICHOLAS G. GARAUFIS,United States District Judge.
Before the court is Petitioner Pierre Arias's pro se motion, pursuant to Rule 60(b)ofthe
Federal Rules of Civil Procedure,for relieffrom the dismissal of his petition for habeas corpus
(the "Petition") as untimely. (See Feb. 26,2016, Min. Entry; Clerk's J.(Dkt. 9); Pet'r's Mot. to
Vacate Clerk's J.("Mot.")(Dkt. 13).) For the reasons that follow,the motion is DENIED.
Petitioner is a prisoner at the Fishkill Correctional Facility, where he is currently serving
a sentence offifteen years to life in prison following his convictions in the New York Supreme
Court, Queens County,for murder in the second degree and attempted murder in the second
People v. Arias. 64 A.D.3d 786(N.Y. App. Div. 2009)(affirming the judgment of
conviction). (Pet. For Habeas Corpus ("Pet.")(Dkt. 1)at 1.) According to the evidence
presented at his trial. Petitioner and several friends went to see a movie at a theater in Forest
Hills, Queens,late on the night of December 23,2004. (E.g., Tr. of Test, of Herman Gerardi
("H. Gerardi Test.")(Dkt. 7-8) 1129:23-1136:21 (ECF pp. 1304-11).) At the movie theater, one
ofPetitioner's friends, Daniel Cho,picked a fight with another moviegoer, Davey Adams,whom
Cho did not know. (E.g.. Tr. ofTest, ofFrancis Lopez("Lopez Test.")(Dkt. 7-7)844:12-847:13
(ECF pp.1021-24).) After the movie ended, Cho and another of Petitioner's friends, Peter
Gerardi, accosted Adams outside the theater and demanded that he fight them. (Lopez Test.
852:7-858:7(ECF pp. 1029-35); Tr. of Test, ofEduardo Avilez(Dkt. 7-10) 1377:1-1380:25
(ECF pp. 1552-55).) Adams attempted to deflect these provocations, but after Gerardi "suckerpunched" him, a brawl ensued between Petitioner and his friends, on the one hand, and Adams
and his friends, on the other. (Lopez Test. 864:14-880:7(ECF pp.1041-57); Tr. of Test, of
Yadjiel Collado ("Collado Test.")(Dkt. 7-9) 1270:16-1278:14(ECF pp.1445-53).) During the
melee, Adams was stabbed in the abdomen and back, and his friends Yadjiel Collado and Francis
Lopez were stabbed in the arm and back and slashed on the head,respectively. (E.g., Tr. of Test,
ofRoman Shakh(Dkt. 7-5)577:7-10(ECF p. 754); Lopez Test. 884:10-20, 919:19-2(ECF
pp.1061,1096); Collado Test. 1279:2-3,1280:20-1283:3(ECF pp. 1454, 1455-58).) Adams died
from his wounds. (Tr. of Test, of Sean Kelly(Dkt. 7-9) 1345:20-1346:17(ECF pp.1521-22).)
The prosecution presented extensive evidence that Petitioner—^who was 15 years old at the
time—^was responsible for stabbing Adams, Collado, and Lopez. (E.g.. Tr. of Test, of Giselle
Guzman(Dkt. 7-6)738:4-22, 743:14-745:10(ECF pp.915, 920-22); Lopez Test. 867:22-868:25
(ECF pp.1044-45); Collado Test. 1276:6-1279:8(ECF pp.1451-54); H. Gerardi Test. 1141:2-8,
1150:8-13,1154:15-1155:18(ECF pp.1316,1325,1329-30); Sept. 12,2006, Trial Tr.(Dkt. 712) 1714:3-5(ECF p.1889).)
Defendant was tried and, on September 12,2006, convicted. (Id. 1709:12-25(ECF
p.1884.) Petitioner timely appealed to the Appellate Division. In his brief. Petitioner argued that
(1)the trial court erred by giving an "acting in concert" instruction;(2)the prosecution had failed
to establish that he possessed the requisite mens rea; and(3)the verdict was against the weight of
the evidence. (See Appellant's Br.(Dkt. 7)at 26,38,46(ECF pp.68, 80, 88).) On
July 28,2009,the Appellate Division affirmed his conviction, concluding that the trial court's
charge to the jury regarding "acting in concert" was not improper; that Petitioner's mens rea
argument was not preserved for appeal and,in any event, was unmeritorious; and that the weight
ofthe evidence supported the jury's guilty verdict.
Arias. 64 A.D.3d at 786.
On January 27,2014—^more than four years after the Appellate Division denied his
appeal—^Petitioner sought leave to appeal from the Court of Appeals. (Notice of Mot.(Dkt. 7)at
ECF p.l 14; Pet'r Aff.(Dkt. 7)at ECF p.l 16.) Respondent opposed Petitioner's request for leave
to appeal as untimely. See N.Y. Crim. Proc. L. 460.10(5)(authorizing a defendant to seek leave
to appeal from the Court of Appeals "[wjithin thirty days after service upon the appellant ofa
copy ofthe order sought to be appealed"). (Resp't Opp'n to Leave to Appeal(Dkt. 7)at ECF p.
120.) The Court of Appeals summarily denied Petitioner leave to appeal on April 14,2014.
People V. Arias. 9 N.E.3d 912(N.Y. 2014). Petitioner's conviction thus became final,for
purposes offederal habeas review, on July 13,2014, when his time for seeking a writ of
certiorari from the U.S. Supreme Court expired. S^28 U.S.C. § 2244(d)(1)(A); Epps v. Poole.
687 F.3d46,49(2dCir. 2012).
On August 30,2015—^more than thirteen months after his conviction became final—
Petitioner filed his pro se petition for habeas corpus. The petition asserted three grounds for
relief, which tracked the headings ofPetitioner's brief to the Appellate Division. (Compare
Appellant's Br. at i-ii(ECF pp.41-42), with Petition at 7-8.) Respondent moved to dismiss the
petition as untimely. (Mot. to Dismiss(Dkt. 6).) Petitioner did not respond to the motion. At
oral argument on the petition, held before Judge John Gleeson ofthis district on February 26,
2016, however. Petitioner argued that the court should toll the applicable statute oflimitations
because, while he was being transferred between prison housing units on April 17, 2015, he
misplaced an unmarked bag containing his legal research (his "draft bag"), which a corrections
officer then moved to a storage room:
THE COURT:So the People,through Ms. Abbot, are claiming that
you had one year from July 13, 2014,to file your petition, but you
filed it later than that, so I should kick it out on statute oflimitations
grounds. What do you say? What is your response to that?
MR. ARIAS: I say, well, something had happened, had occurred
during a movement within the facility where I was actually missing
a lot of my—all of my legal documents. I got transferred on 4/17
jfrom one housing unit, from one building to another building, and
some property wasn't—all of my property was not given to me.
And I wrote the counselors, I wrote the head counselor here, Mr.
Eddie, concerning—^you know, all he really had to do was ask the
ofdcers who were present, because they had found my bag in a
Since I'm not moving from facility to facility, they don't put name
tags on the bags. So they just took a bag and they put it along with
other property. And it was held,I believe, approximately like 60—
a little over 60 days. And when it was found,it was returned to me.
But that's where I had all of my highlighted case law, all my notes,
everything that I was trying to argue. And that did hinder my
process a lot.
(Tr. of Oral Arg., Feb. 26,2016("Tr. of Oral Arg.")(Dkt. 11)4:24-5:21.)
At the end oforal argument, Judge Gleeson dismissed the petition as untimely,
concluding that Petitioner's explanations regarding his lost draft bag "don't constitute grounds
for tolling at all, in my view, and not for a sufficient period even ifthey had merit to render the
petition timely." (Id. 10:19-11:19.) In particular. Judge Gleeson questioned Petitioner as to
why,even assuming that he lacked access to his legal materials from mid-April until midJune 2015,Petitioner was prejudiced in his ability to file a timely petition, given that the petition
he filed simply reproduced the three headings of his Appellate Division brief. (Id 6:24-7:24.)
Judge Gleeson dismissed the petition and declined to issue a certificate of appealability. (Clerk's
J.(Dkt. 9); Feb. 26,2016, Min. Entry.) On August 19, 2016,the U.S. Court of Appeals for the
Second Circuit denied Petitioner's motion for a certificate of appealability and dismissed his
appeal "because [Petitioner] has not shown that 'jurists ofreason would find it debatable whether
the district court was correct in its procedural ruling' as to the imtimeliness ofthe...Petition."
(USCA Mandate (Dkt. 12)fquoting Slack v. McDaniel. 529 U.S.473,478 (2000)).)
On March 30,2017—^more than thirteen months after the district court dismissed his
habeas petition—^Petitioner filed the Rule 60(b) motion that is currently before the court.
Following Judge Gleeson's resignation,the case was transferred to this court, which directed
Respondent to respond to the motion. (Apr.4,2017, Order Reassigning Case; Order (Dkt. 14).)
Petitioner argues that the court should grant him relief firom the dismissal of his habeas
petition as untimely. Although his argument is not entirely clear. Petitioner appears to contend
that Judge Gleeson either misunderstood his arguments concerning the "misplaced" or "stolen"
"draft bag"(Mot. at 4, 8)or made legal or factual errors in rejecting those arguments
at 3,4, 8).^ The parties dispute whether the motion is properly construed as seeking relief under
Rule 60(b)(1) or Rule 60(b)(6). Respondent argues that because Petitioner seeks relief on the
basis ofthe court's purported mistake,the motion is properly construed as seeking relief under
Rule 60(b)(1), which permits the court to "relieve a party or its legal representative from a final
judgment, order, or proceeding," in case of"mistake,inadvertence, surprise, or excusable
neglect." Fed. R. Civ. P. 60(b)(1)(emphasis added). (Resp't Mem.ofLaw in Opp'n to Mot.
'Because Petitioner is proceediDg pro se. the court construes the motion liberally in his favor.
Pardus. 551 U.S. 89,94(2007).
(Dkt. 15)at 14.) Petitioner styles the motion, however, as seeking relief under Rule 60(b)(6),
which permits the court to grant relieffrom a final judgment, order, or proceeding for "any
reason thatjustifies relief." Fed. R. Civ. P. 60(b)(6). (Mot. at 1,4.)
The court agrees with Respondent that the motion is properly construed as seeking relief
under Rule 60(b)(1). It is well-established in this circuit that Rule 60(b)(1) permits relieffrom a
judgment, order, or proceeding resulting from ajudicial mistake.
United Airlines. Inc. v.
Brien. 588 F.3d 158, 175(2d Cir. 2009); Gev Assocs. Gen. P^shin v. 310 Assocs. fin re 310
Assocs.). 346 F.3d 31, 34-35(2d Cir. 2003)(per curiam). See generallv 11 Charles A. Wright et
al.. Federal Practice and Procedure § 2858.1, at 376-85(3d ed. 2012)(discussing whether
Rule 60(b)(1)encompasses requests for relief from judicial mistakes). It is likewise wellestablished that Rule 60(b)(6)cannot be used to obtain relief on any grounds on which relief is
available under Rule 60(b)(1): these provisions are '"mutually exclusive,' such 'that any conduct
which generally falls under the former cannot stand as a ground for relief xmder the latter.'"
Stevens v. Miller. 676 F.3d 62,67(2d Cir. 2012)(quoting United States v. Cirami. 535 F.2d 736,
740(2d Cir. 1976)); accord United Airlines. 588 F.3d at 175. Because Petitioner seeks relief
from a supposed judicial error, he must do so under Rule 60(b)(1), not Rule 60(b)(6).
Because Petitioner's motion, properly construed, seeks relief under Rule 60(b)(1), it is
untimely. A motion for relief under Rule 60(b)(1) must be made "no more than a year after the
entry ofthe judgment or order or the date ofthe proceeding" from which the movant seeks relief.
Fed. R. Civ. P. 60(c)(1). Petitioner, however, filed his motion more than thirteen months after
Judge Gleeson dismissed his petition. The motion is therefore untimely. S^ United Airlines.
588 F.3d at 175("[Rule 60(b)(1) and Rule 60(b)(6)] are exclusive and 'an appellant cannot
circumvent the one-year limitation [of Rule 60(b)(1)] by invoking the residual clause(6)of
Rule 60(b).'"(second alteration in original)(quoting Serzvsko v. Chase Manhattan Bank,461
F.2d 699,702(2d Cir. 1972)(per curiam)),)
Even if Petitioner's motion were construed as seeking relief under Rule 60(b)(6),the
result would be the same. In order to obtain relief under Rule 60(b)(6), a party must, among
other things, make a motion "within a reasonable time," Fed. R. Civ. P. 60(c)(1), and
demonstrate "extraordinary circumstances" warranting relief,
^Buck v. Davis. 137 S. Ct. 759,
777-78(2017). Petitioner has done neither.
With respect to timeliness. Petitioner offers no explanation for why the thirteen-month
delay between the dismissal ofhis petition and the filing of his Rule 60(b) motion challenging
that dismissal was "reasonable."
Amoco Overseas Oil Co. v. Comnagnie Nationale
Algerierme de Navigation. 605 F.2d 648,656(2d Cir. 1979)(unexplained one-year delay was
unreasonable). The court can discern no such explanation from "the particular circumstances of
^PRC Harris. Inc. v. Boeing Co., 700 F.2d 894, 897(2d Cir. 1983), as Petitioner
was aware ofthe only grounds on which he seeks relief—^that Judge Gleeson supposedly
misunderstood his arguments regarding his draft bag, or erred in rejecting those arguments—at
the time the petition was dismissed. The motion is therefore untimely, even under Rule 60(b)(6).
Nor does Petitioner identify any "extraordinary circumstances" warranting relieffrom the
dismissal of his petition. First, Judge Gleeson's conclusion that Petitioner did not warrant
equitable tolling was plainly correct. Petitioner's temporary loss of his draft bag was not an
"extraordinary circumstance" warranting equitable tolling.^ See Prescod v. Brown.No. 10-CV-
^ A prison official's intentional confiscation ofa prisoner's legal materials constitutes an "extraordinary"
circumstance as a matter oflaw. Valverde v. Stinson. 224 F.3d 129,133-34(2d Cir. 2000);
^Morello v. James.
810 F.2d 344, 347(2d Cir. 1987). Likewise, a prison official's interference with prisoners' attempts to indicate their
constitutional right of meaningful access to the courts may, in certain circumstances, be "extraordinary." See
Tanner v. Yukins. 776 F.3d 434,436,438-39(6th Cir. 2015)(reversing the denial of Rule 60(b)relief where guards
prevented prisoner from filing timely appeal); cf Hizbullahankhamon v. Walker.255 F.3d 65,75(2d Cir. 2001)
(Sotomayor, J.)(reserving the question of"whether the deprivation of petitioner's legal materials and his access to
2395(SHS)(AJP),2011 WL 182063, at *5(S.D.N.Y. Jan. 20,2011)(negligent loss oflegal
materials is not extraordinary), report and recommendation adopted. No. lO-CV-2395(SHS),
2011 WL 497855(S.D.N.Y. Feb. 10,2011). Even ifthe loss ofthe draft bag were an
"extraordinary circumstance" for purposes of equitable tolling. Petitioner did not demonstrate
that he diligently attempted to obtain relief. See Pace v. DiGuelielmo. 544 U.S. 408,418(2005).
By Petitioner's own account, he lost access to his drafts between either February 6,2015(Mot.
at 4), or April 17,2015 (Tr. of Oral Arg. 5:7, 5:22-6:1, 7:1-2),^ and mid-June 2015 but only filed
a skeletal petition more than two months later. Second, even ifthe court were to conclude,
contra Judge Gleeson,that Petitioner warranted equitable tolling, that would not constitute an
"extraordinary circumstance" warranting Rule 60(b)(6)relief. As courts in this circuit have
noted,"[t]he Second Circuit routinely finds that Rule 60(b)(6) motions that simply seek to
relitigate all issues presented in an action or argue that the district court's decisions were wrong
are not sufficiently 'extraordinary' to warrant relief under Rule 60(b)(6)." Dolan v. Select
Portfolio Servicing. Inc.. No.03-CV-3285(PKC),2017 WL 4357336, at *8(E.D.N.Y. Sept. 29,
2017)(collecting cases). In the absence of any "extraordinary circumstance" warranting relief
from the dismissal ofthe petition. Petitioner cannot obtain relief under Rule 60(b)(6).
law library materials could constitute an extraordinary circumstance warranting equitable tolling). No such
circumstances are present here, as Petitioner specifically notes that he "does not contend that correction ofiBcer[s]
intentionally confiscated his legal papers." (Mot. at 7.)
^ Petitioner repeatedly stated before Judge Gleeson that he misplaced his draft bag on April 17, 2015. (Tr. ofOral
Arg. 5:7("I got transferred on 4/17
"); id. 5:22-6:3("THE COURT:So you were transferred within the fecility
on April 17? MR.ARIAS: Yes. THE COURT: And then you didn't have access to your papers fi-om April 17tii to
what,to June? You said two months? MR.ARIAS: Yes. I believe it was June 19th or June 21st or 22nd.")
Petitioner now avers that he lost the draft bag on February 6,2015. (Mot. at 4-6.) The court need not address this
unexplained contradiction, as Petitioner's motion is unavailing regardless of when he lost his draft bag.
Petitioner's motion to vacate the dismissal of his habeas petition(Dkt. 13)is untimely
under Rule 60(b)(1). Even if it could be construed as a request for relief under Rule 60(b)(6),the
motion would be both untimely and unmeritorious. Accordingly,the motion is DENIED.
The Clerk of Court is respectfully DIRECTED to mail a copy ofthis order to pro se
Petitioner Pierre Arias.
s/Nicholas G. Garaufis
Dated: Brooklyn,New York
NICHOLAS G. OARAUFl
United States District Judge'
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