Micolo v. The State of New York
Filing
20
ORDER denying 9 Motion for Reconsideration. it is hereby Ordered that petitioner's motion for reconsideration is denied and his petition will not be transferred to the Circuit. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962). The Clerk of the Court is directed to mail a copy of this Order to the petitioner. So Ordered.. Ordered by Judge Joanna Seybert on 6/26/2013. (Padilla, Kristin)
FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D N y
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
*
-------------------------------X
MARCUS ANTHONY MICOLO,
JUN 2 6 2013
Petitioner,
ORDER
12-CV-5509
-againstTHE STATE OF NEW YORK
Respondent.
-------------------------------X
APPEARANCES
For Petitioner:
Marcus A. Micolo, pro se
03-A-3985
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582
No Appearance
For Respondents:
SEYBERT, District Judge:
On October 26,
2012,
Petitioner Marcus Anthony Micolo
("Petitioner") filed this in forma pauperis Petition for a writ of
habeas
corpus
pursuant
to
28
U.S.C.
2241
§
("Section
2241"),
challenging his 2003 Suffolk County conviction of Robbery in the
First Degree.
Petitioner's
dismissed
By Order dated January 7, 2013, this Court granted
application
the
Petition
to
on
proceed
the
ground
in
forma
that
a
pauperis,
court
may
but
only
entertain a writ of habeas corpus pursuant to Section 2241 for
federal prisoners.
Ord.
Dismissing
See Micolo v. State of N.Y., No. 12-CV-5509,
Pet.
at
3,
Jan.
7,
2013
(internal
is
Petitioner's
citations
omitted) .
Now
before
*
LONG ISLAND OFFICE
the
Court
motion
for
reconsideration of the denial of his Section 2241 Petition pursuant
..
to Fed.
R.
Civ.
P.
60 (b),
or,
alternatively,
a motion for this
Court to construe the instant Petition as a successive 28 U.S.C.
§
2254 petition for a writ of habeas
("Section 2254"),
and to
transfer the Petition to the Second Circuit Court of Appeals.
Because,
as
explained
below,
all
of
the
grounds
raised
in
Petitioner's motion have already been addressed either by this
Court
or
by
the
Second
Circuit,
Petitioner's
motion
for
reconsideration is DENIED and this Petition will not be transferred
to the Second Circuit as successive.
~
Petitioner's Three Habeas Actions
Petitioner has filed three petitions for habeas corpus
with this Court.
Section 2254,
The first, filed on January 30, 2007, pursuant to
challenged his state conviction, and was denied in
its entirety by a Memorandum and Order dated August 18, 2010.
See
Micolo v. State of N.Y., No. 07-CV-0449, 2010 WL 3310721 (E.D.N.Y.
Aug. 18, 2010).
Court denied.
He subsequently sought reconsideration, which this
Id., Order Den. Recons., Oct. 8, 2010.
appealed the denial to the Second Circuit,
appeal.
Id.,
U.S.C.A. Mandate, Oct.
17,
Petitioner
which dismissed his
2011.
Petitioner then
moved this Court for an order vacating its judgment of dismissal,
which the Court denied on August 10, 2012.
Id., Mem. Order Den.
Mot. Vacate, Aug. 10, 2012.
Petitioner's second attempt at securing habeas relief
from this Court was by filing the Petition in this case pursuant to
2
Section 2241 on October 26, 2012.
07-CV-5509,
Pet.,
Oct.
26,
See Micolo v. State of N.Y., No.
2012.
This
Petition was dismissed
because, as explained above, a court may only entertain a writ of
habeas corpus pursuant to Section 2241 for federal prisoners, and
petitioner is a state prisoner.
2013.
Id.,
Order Dis.
Pet.,
The instant motion for reconsideration followed.
Jan.
7,
Id., Mot.
Recons. , Jan. 17, 2 013. 1
On November 19, 2012, Petitioner filed a third petition
for a writ of habeas corpus, which,
filed pursuant to Section 2254.
5795,
Pet.,
Nov.
19,
2012.
like his first attempt, was
See Micolo v. Capra, No. 12-CVThis
Court
transferred
the
third
petition to the Second Circuit as a second or successive petition
pursuant to 28 U.S.C.
4, 2013.
§
1631.
Id., Order Transferring Case, Jan.
By Order dated March 26, 2013, the Second Circuit denied
to consider the petition because it did not satisfy the criteria of
28 U.S.C.
§
2244(b)
for a second or successive petition.
Id. ,
U.S.C.A. Mandate, Mar. 26, 2013.
~
Petitioner's Current Motion
Rule
provides
60(b)
relief
from
of
a
the
Federal
judgment
Rules
for,
of
inter
Civil
Procedure
alia,
mistakes,
1 In addition to the motion papers,
the Court is also in receipt
of, and has considered, Petitioner's letter dated June 5, 2013,
informing this Court of correspondence between Petitioner and
Hon. C. Randall Hinrichs, the District Administrative for Suffolk
County, New York.
See Micolo v. State of N.Y., No. 07-CV-5509,
Docket Entry 19, Oct. 12, 2013.
3
inadvertence,
fraud.
FED.
judicial
excusable neglect,
R. Crv. P. 60(b).
relief
that
may
exceptional circumstances.
important
matters
or
newly discovered evidence,
Rule 60(b) provides extraordinary
only
be
Here,
granted
upon
a
showing
of
Petitioner has not pointed to
controlling
decisions
that
the
overlooked that would have influenced its prior decision.
he pointed to mistakes,
and
inadvertence,
Court
Nor has
excusable neglect,
newly
discovered evidence, or fraud that would have altered this Court's
denial of his Petition.
In addition, all of the grounds raised by
Petitioner's motion were raised and addressed in previous petitions
before this Court and the Second Circuit, and do not satisfy the
criteria
set
forth
in
28
U.S.C.
2244 (b)
§
for
a
second
or
successive petition.
Petitioner's
current motion
raises
four grounds upon
which Petitioner argues that this Court should vacate the decisions
made by the state courts and direct the Appellate Division, Second
Department to "grant Petitioner a de novo appeal in his criminal
case."
(Mot. Recons. at 2.)
All four grounds have already been
addressed and dismissed by this Court or by the Second Circuit.
The Court will address each in turn.
Petitioner
first
argues
that
his
Indictment
was
jurisdictionally and Constitutionally void because it was "obtained
while [he] was completely denied counsel[.]"
Id. at 2.
He raised
this argument before this Court in a Section 2254 petition, Micolo
4
v. Capra, No. 12-CV-5795, Pet. at 4, which the Court transferred to
the Second Circuit as a second or successive petition pursuant to
28
U.S. C.
§
1631,
and which the Second Circuit denied for not
satisfying the criteria set out in 28 U.S.C.
§
2244 (b) . 2
Petitioner's second and third grounds for relief concern
the performance of appellate counsel.
that appellate counsel had an
~couldn't
~actual
The second ground argues
conflict of interest" and
bring the issue that [Petitioner] was denied counsel in
the Indictment court due to the Suffolk Co.
failure to assign counsel."
Legal Aid Society's
(Mot. Recons. at 3.)
His third ground
asserts that appellate counsel was ineffective as a matter of law
for
failing
to
raise
the
issue
that
appellate
counsel
had
a
conflict of interest, and should have requested permission to be
relieved as Petitioner's counsel.
Id.
These issues were raised in
Petitioner's first habeas petition and addressed and denied by the
Second Circuit's mandate in Micolo v.
0449,
U.S.C.A.
Mandate,
Oct.
17,
2011.
State of New York,
07-CV-
Petitioner raised these
same issues again in his third habeas petition before this court,
Micolo v.
Capra,
No.
12-CV-5795,
Pet.
at 4,
which,
as explained
above, was transferred to, and denied by, the Second Circuit as a
2
Although not raised in his first Section 2254 petition before
this Court, the Circuit directly addressed this point in its
mandate in Micolo v. State of New York, No. 07-CV-0449, U.S.C.A.
Mandate, Oct. 17, 2011, as Petitioner raised the issue on appeal.
Petitioner also repeated these arguments in his most recent
filing with the Court.
See Micolo v. State of N.Y., No. 07-CV5509, Docket Entry 19.
5
successive petition.
See Micolo v. Capra, No. 12-CV-5795, U.S.C.A.
Mandate, Mar. 26, 2013.
Petitioner's fourth and final ground for reconsideration
asserts that he is actually innocent of Robbery in the First Degree
because the evidence only supports an indictment for Robbery in the
Second Degree.
This is the same sufficiency of evidence argument
that Petitioner made in his first habeas petition,
see Micolo v.
State of New York, No. 07-CV-0449, Pet. at 10, that was addressed
by this Court in its decision in that case, id., 2010 WL 3310721,
and that was denied on appeal by the Second Circuit, id., U.S.C.A.
Mandate, Oct. 17, 2011.
III. Conclusion
Accordingly, Petitioner's motion for reconsideration is
DENIED and his Petition will not be transferred to the Circuit.
The Court certifies pursuant to 28 U.S.C.
§
1915(a)(3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for the purpose of
any appeal.
see Coppedge v. United States, 369 U.S. 438, 444-45,
82 S. Ct. 917, 8 L. Ed. 2d 21
(1962).
The Clerk of Court is directed to mail a copy of this
Order to the Petitioner.
SO ORDERED.
/s/ Joanna Seybert
JoanUSeybert, U.S.D.J.
6
Dated:
June -:2(. ' 2013
Central Islip, New York
7
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