Rivera v. Rich

Filing 26

DECISION AND ORDER: ORDERED that petitioner's motion to reconsider the August and April Orders, Dkt. No. 24 , is DENIED. ORDERED that petitioner's request for a hearing, Dkt. No. 24 at 4, is DENIED. ORDERED that, to the exten t petitioner wishes to appeal the instant Decision and Order, any such appeal must be made to the District Court Judge within fourteen days of receiving this decision. If petitioner chooses to appeal the instant Decision and Order, the proceedings wi ll be stayed pending the District Judge's decision on the appeal. ORDERED that petitioner's deadline to file a reply is stayed pending resolution of any appeal from this Decision and Order. The Court will schedule petitioner's deadline for his reply either after petitioner's time to appeal to the District Judge has passed or said appeal has been decided. Signed by US Magistrate Judge Andrew T. Baxter on 6/3/2021. {order served via regular mail on petitioner}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DOUGLAS RIVERA,
Petitioner,
v.

9:20-CV-0865
(GTS/ATB)

JOHN RICH, Superintendent,
Respondent.

ANDREW T. BAXTER
United States Magistrate Judge
DECISION and ORDER
Petitioner Douglas Rivera seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
Dkt. No. 1, Petition ("Pet."); Dkt. No. 1-1-1-2, Exhibits.1 Petitioner challenges a 2015
judgment of conviction in Montgomery County, upon a guilty plea, of second degree burglary.
Pet. at 2; accord People v. Rivera, 164 A.D.3d 1573, 1573 (3rd Dep't 2018).
Simultaneously with the commencement of this action, petitioner also applied for
appointment of counsel. Dkt. No. 3. On August 10, 2020, the Court directed respondent to
file an answer to the petition and denied petitioner's application w ithout prejudice. Dkt. No. 6,
Decision and Order ("August Order")
Respondent opposed the petition. Dkt. No. 13, Mem orandum of Law in Opposition;
Dkt. No. 14, Answer; Dkt. No. 15, State Court Records. Upon receipt of the respondent's
opposition, the Court provided petitioner with an opportunity to file a reply. Dkt. No. 17, Text
Order.

1

For the sake of clarity, citations to both parties' filings refer to the pagination generated by CM/ECF, the
Court's electronic filing system.

Instead, petitioner filed motions (1) seeking to compel discovery; (2) requesting an
extension of time to file his reply; and (3) requesting default judgment. Dkt. Nos. 18 & 19.
Respondent opposed petitioner's motions to compel and for a default judgment. Dkt. No. 21.
On April 6, 2021, the Court denied petitioner's m otions to compel discovery and for default
judgment and granted him an extension of time within which to file his reply. Dkt. No. 22,
Decision and Order ("April Order").
Petitioner presently seeks reconsideration of the August and April Orders. Dkt. No.
24. Specifically, petitioner moves for reconsideration of the motion to compel because "the
Court's decision was entered prior to the Court receiving petitioner's [reply] papers in support
of his motions, and because of such, there appears to be error in the Court's written
findings." Id. at 1. Petitioner assumed that he would be given thirty days to file a reply to
respondent's opposition; however, the Court issued the April Order before receiving the reply
and, per petitioner, "made erroneous findings in [its] written decision." Id. at 1-2. Moreover,
petitioner seeks reconsideration of his request for a default judgment or, alternatively,
reconsideration of the August Order denying his motion for counsel and the issuance of a
stay. Id. at 4.
Respondent opposes petitioner's motion. Dkt. No. 25. Specifically, respondent
argues that the motion is untimely and meritless because it fails to provide an adequate basis
for reconsideration. Id. at 2-4.
As a preliminary matter, the Court agrees with respondent that petitioner's motion is
untimely. The Local Rules provide that a motion for reconsideration must be filed "no later
than fourteen days after the entry of the challenged . . . order[.]" N.D.N.Y.L.R. 60.1. Here,
the April Order is dated April 6, 2021. April Order at 10. Because petitioner w as served by
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mail, see Dkt. Entry for April Order, he is entitled to an additional three days time. Fed. R.
Civ. P. 6(d). Therefore, in order to be timely filed, the motion was due on or before April 23,
2021. However, petitioner's motion is dated April 29, 2021. 2 Accordingly, it was filed six
days too late and can be denied on that basis alone.
Even assuming the motion was timely filed, it is still inadequate to justify the requested
relief. "The standard for . . . [reconsideration] is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions or data that the court
overlooked . . . that might reasonably be expected to alter the conclusion reached by the
court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration is
warranted only where controlling law has changed, new evidence is available, clear error
must be corrected, or manifest injustice prevented. Long v. U.S. Dep't of Justice, 778 F.
Supp. 2d 222, 228-29 (N.D.N.Y. 2011) (citing Doe v. New York City Dep't of Soc. Servcs.,
709 F.2d 782, 789 (2d Cir. 1983)); Jackson v. Jimino, 506 F. Supp. 2d 105, 108-09 (N.D.N.Y.
2007).
First, petitioner's assumption that he was entitled to file a reply to respondent's
opposition to his motion was incorrect. The Local Rules indicate that "[r]eply papers . . . are
not permitted without the Court's prior permission." N.D.N.Y.L.R. 7.1(a)(2). Petitioner did not
request, let alone acquire, the required permission; therefore, the Court did not anticipate
petitioner's reply. Moreover, the Court did not require a reply and would not have authorized
one even if petitioner had properly sought permission to do so. Consequently, the Court did
not err by timely deciding the motion without said reply papers.

2
Under the prison "mailbox rule," a petitioner's application is deemed filed on the date he delivers it to the
prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270 (1988).

3

Second, petitioner's conclusory assertions that the April Order contains "erroneous
findings" is completely unsupported. Petitioner contends that the Court m isunderstood his
motion, representing that the Court only identified "limited" reasons why petitioner needed his
presentence investigation report ("PSI"). Dkt. No. 24 at 2. This misstates the April Order,
which discussed the "several different reasons" petitioner claimed he required his PSI,
examined petitioner's argument that Townsend v. Burke, 334 U.S. 736 (1948) compelled
disclosure, and explained a range of rationale why the Court disagreed with petitioner's
arguments. April Order at 3-7. The essence of petitioner's motion for reconsideration
remains the same as his original motion for discovery. Petitioner continues to rehash the
same facts and arguments that he presented before. However, petitioner fails to identify
controlling decisions or data that the Court overlooked which would reasonably change the
Court's prior decision. In sum, petitioner's continued disagreement with this Court's decision
is not a basis for reconsideration. Finkelstein v. Mardkha, 518 F. Supp. 2d 609, 611
(S.D.N.Y. 2007).
Petitioner "rest[s] on his papers before the Court," to request reconsideration of the
April Order's decision to deny petitioner's motion for default judgment and, in the alternative,
for its August Order denying appointment of counsel. Dkt. No. 24 at 4. These bare bones
proffers, at best, vaguely reference previously unsuccessful arguments and, at worst,
completely fail to identify any controlling decisions or data that would cause the Court to
change its conclusion. Accordingly, as the Court has not been presented with a change in
the law, the discovery of new evidence, or a manifest injustice which must be rectified,
reconsideration of the Court's previous decisions is not warranted.
With respect to petitioner's request for a hearing, his request is denied. The Local
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Rules again provide that "[t]he Court will decide motions for reconsideration . . . on
submission of the papers, without oral argument, unless the Court directs otherwise."
N.D.N.Y.L.R. 60.1. Here, there is no need for oral argument as, for the aforementioned
reasons, petitioner has failed to establish that he is entitled to reconsideration.
Moreover, to the extent petitioner seeks to have this Decision reviewed, petitioner
"must file and serve [any] appeal [to the District Court Judge] within fourteen (14) days [of]
being served with the Magistrate Judge's Order, and must specifically designate the order or
part of the order from which [he] seeks relief and the basis for the appeal." N.D.N.Y.L.R.
72.1(b).
WHEREFORE, it is
ORDERED that petitioner's motion to reconsider the August and April Orders, Dkt. No.
24, is DENIED; and it is further
ORDERED that petitioner's request for a hearing, Dkt. No. 24 at 4, is DENIED; and it
is further
ORDERED that, to the extent petitioner wishes to appeal the instant Decision and
Order, any such appeal must be made to the District Court Judge within fourteen days of
receiving this decision. If petitioner chooses to appeal the instant Decision and Order, the
proceedings will be stayed pending the District Judge's decision on the appeal; and it is
further
ORDERED that petitioner's deadline to file a reply is stayed pending resolution of any
appeal from this Decision and Order. The Court will schedule petitioner's deadline for his
reply either after petitioner's time to appeal to the District Judge has passed or said appeal
has been decided; and it is further
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ORDERED that the Clerk serve a copy of this Decision and Order upon the parties in
accordance with the Local Rules.
Dated: June 3, 2021

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