Lora v. West

Filing 55

ORDER denying 52 Motion for Reconsideration re 52 MOTION for Reconsideration re; 28 Memorandum & Opinion,,. filed by Jose Lora. For all of these reasons, Kemp does not provide a basis for this Court to reopen the September 2010 Orde r. The Court accordingly denies Petitioner's motion to reopen. Because Petitioner has not made a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c) . The Court further certifies under 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 an appeal. See Coppedge v. United States, 369 U.S . 438, 444-45 (1962). The Clerk of Court is directed to terminate the motion at docket entry 52 and to mail a copy of this Order to Petitioner at his address of record. (Signed by Judge Katherine Polk Failla on 11/1/2022) (rro) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSE LORA,
Petitioner,
04 Civ. 1902 (KPF)

-v.SUPERINTENDENT, SULLIVAN
CORRECTIONAL FACILITY,

ORDER

Respondent.
KATHERINE POLK FAILLA, District Judge:
In June 2022, Petitioner Jose Lora moved pursuant to Federal Rule of
Civil Procedure 60(b)(6) to reopen a prior order of this Court issued on
September 16, 2010 (the “September 2010 Order”), which order denied
Petitioner’s earlier Rule 60(b) motion to reopen a 2005 order denying
Petitioner’s request for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(See Dkt. #52 (notice of motion), 53 (supporting affidavit), 54 (supplemental
letter); see also Dkt. #25 (September 2010 Order), 18 (June 20, 2005 order
adopting report and recommendation that recommended denial of Petitioner’s
habeas petition)). For the reasons set forth in the remainder of this Order, the
Court denies Petitioner’s motion.
BACKGROUND
Familiarity with the extensive prior procedural history of this case is
presumed. On March 10, 2004, the Clerk of Court docketed Petitioner’s
counseled petition for a writ of habeas corpus under 28 U.S.C. § 2254 (the
“Petition”), challenging his convictions, after two separate trials, of several

counts of murder in the second degree and one count of conspiracy in the
second degree. (Dkt. #1). The matter was initially assigned to United States
District Judge Richard J. Holwell and was referred to United States Magistrate
Judge Gabriel W. Gorenstein for a report and recommendation. (Dkt. #3). On
February 17, 2005, Judge Gorenstein issued a Report and Recommendation
(the “2005 Report”) recommending that the Petition be denied in its entirety.
(Dkt. #14). Lora v. West, No. 04 Civ. 1902 (RJH) (GWG), 2005 WL 372295
(S.D.N.Y. Feb. 17, 2005). No objections were filed, and a judgment dismissing
the case was entered by the Clerk of Court on June 21, 2005. (Dkt. #19).
Four and one-half years later, on December 17, 2009, the Clerk of Court
docketed Petitioner’s pro se motion under Federal Rule of Civil Procedure
60(b)(6) to vacate the District Court’s judgment. (Dkt. #20). Again, Judge
Holwell referred the matter to Judge Gorenstein for a report and
recommendation. On April 16, 2010, Judge Gorenstein issued a report and
recommendation (the “2010 Report”) recommending that the Rule 60(b) motion
be denied. (Dkt. #25). Lora v. West, No. 04 Civ. 1902 (RJH) (GWG), 2010 WL
1541339, at *1 (S.D.N.Y. Apr. 16, 2010), report and recommendation adopted,
2010 WL 3632506 (S.D.N.Y. Sept. 16, 2010).
In broad summary, Petitioner had argued that he was entitled to a
vacatur of the prior judgment because his attorney had been “ineffective for
failing to assert additional grounds for relief and for failing to file objections to
the Report and Recommendation and seek a certificate of appealability.” 2010
WL 1541339, at *1. Judge Gorenstein concluded, based on the record before
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him, that Petitioner may have been aware of the 2005 Report as far back as
March 2005, but was certainly aware of it no later than November 2006; from
this, Judge Gorenstein concluded that Petitioner’s Rule 60(b) motion had not
been brought within a reasonable time. Id. at *4; see generally Fed. R. Civ.
P. 60(c)(1) (“A motion under Rule 60(b) must be made within a reasonable
time — and for reasons (1), (2), and (3) no more than a year after the entry of
the judgment or order or the date of the proceeding.”).
Petitioner timely objected to the 2010 Report. (Dkt. #26-27). Judge
Holwell considered his objections, but adopted the Report on September 16,
2010. (Dkt. #28). Lora v. West, No. 04 Civ. 1902 (RJH) (GWG), 2010 WL
3632506 (S.D.N.Y. Sept. 16, 2010). Three months later, after the time to
appeal had lapsed, Petitioner filed a supplemental affirmation, ostensibly in
support of the now-closed case. (Dkt. #33). The affirmation was returned to
Petitioner by Judge Holwell, and Petitioner filed a notice of appeal to the United
States Court of Appeals for the Second Circuit that was docketed on
January 21, 2011. (Dkt. #31). Petitioner also requested leave from the District
Court to proceed in forma pauperis (“IFP”) on appeal (Dkt. #29), but Judge
Holwell denied his request (Dkt. #30).
Petitioner then proceeded with the appeal, moving before the Second
Circuit for a certificate of appealability and for permission to proceed IFP. See
Lora v. West, No. 11-0730-pr. While observing that the notice of appeal
appeared to be untimely filed, the Second Circuit noted that Petitioner had filed
an undocketed motion for extension of time to file his notice of appeal in the
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District Court; by Order dated April 27, 2011, it deferred consideration of the
motions Petitioner had filed with the Circuit, and directed the District Court to
consider the motion for an extension. (Dkt. #35). On June 22, 2011, Judge
Holwell denied Petitioner’s motion for an extension of time, finding that
Petitioner had been aware of the September 2010 Order no later than
December 15, 2010, more than a month before he filed his motion for an
extension. (Dkt. #38). By Order dated September 9, 2011, the Second Circuit
concluded that Petitioner’s notice of appeal had been untimely filed, and
dismissed the appeal for lack of jurisdiction. (Dkt. #39 (mandate)).
More than seven years later, in March 2019, Petitioner filed a second
notice of appeal from the September 2010 Order. (Dkt. #40). Concurrent with
that filing, Petitioner filed a second application for a certificate of appealability
that was assigned to this Court (Dkt. #41), which application this Court denied
by Order dated April 25, 2019 (Dkt. #44; see also Dkt. #46 (declining to revisit
decision), 50 (denying motion for reconsideration)). By Order dated August 1,
2019, the Second Circuit denied Petitioner’s request for a certificate of
appealability and dismissed his second appeal for lack of jurisdiction. (Dkt.
#51 (mandate)).
THE INSTANT MOTION
Nearly three years after this second dismissal of an appeal, Petitioner
filed the instant motion to reopen the September 2010 Order. (Dkt. #52-54).
Relying on the Supreme Court’s decision in Kemp v. United States, 142 S. Ct.
1856 (2022), Petitioner argues that the judicial errors he identified in his
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Petition and subsequent findings are timely raised under Rule 60(b)(6). The
Kemp decision, however, does not support Petitioner’s request.
The Supreme Court in Kemp considered whether judicial error was
properly addressed under the one-year period specified by Rule 60(b)(1) for
“mistake, inadvertence, surprise, or excusable neglect,” or whether such errors
could also be addressed “within a reasonable time” under the catch-all
exception set forth in Rule 60(b)(6). Kemp, 142 S. Ct. at 1860. Proceeding
from the definition of the term “mistake,” the Court concluded that “Rule
60(b)(1) covers all mistakes of law made by a judge.” Id. at 1862. In so doing,
the Court rejected the Government’s argument that Rule 60(b)(1) pertained
only to “obvious” legal errors, while also rejecting Kemp’s argument that the
subsection was limited to “non-judicial, non-legal errors.” Id. at 1862-63.
There are several reasons why Kemp does not provide a basis to reopen
the September 2010 Order. For starters, Petitioner’s appeal from that order
was dismissed by the Second Circuit for lack of jurisdiction more than three
years ago. (Dkt. #51). There is nothing to suggest that Kemp’s holding is
somehow retroactive, or, more pointedly, that it would somehow restart the
clock at one year under Rule 60(b)(1) for any of Petitioner’s claims. Cf.
Edwards v. Vannoy, 141 S. Ct. 1547, 1560 (2021) (“New procedural rules do
not apply retroactively on federal collateral review.”). 1 And while Petitioner
contends that Judges Gorenstein and Holwell erred in analyzing his prior

1

Indeed, to the extent Petitioner alleges judicial error in his state court proceedings,
Kemp affords him no new arguments.

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motion to reopen under Rule 60(b)(1), their decisions also analyzed the motion
under Rule 60(b)(6). (Dkt. #25 at 4 (“It is unnecessary to determine whether
Lora’s motion is best characterized as a Rule 60(b)(1) or a Rule 60(b)(6) motion,
however, as he has failed to bring his motion within a reasonable time.”); Dkt.
#28 at 2-3 (agreeing with 2010 Report’s conclusion that Petitioner’s first Rule
60(b) motion was not filed within a reasonable time, and ascribing four-year
filing delay to Petitioner’s “neglect”)).
Nor does Petitioner properly invoke Rule 60(b)(6), which applies only if
subsections (1) through (5) are inapplicable and, even then, only under
“extraordinary circumstances” or to prevent extreme and undue hardship,
which is not the case here. See Kemp, 142 S. Ct. at 1861 (“This last option is
available only when Rules 60(b)(1) through (b)(5) are inapplicable.”). Petitioner
claims “extraordinary circumstances” arising from a concatenation of
purported attorney and judicial errors in his state court case. However, these
errors were discussed in considerable detail in Judge Gorenstein’s 2005 Report
(Dkt. #25), and Petitioner’s decision not to file objections to that Report for at
least three years after learning of its issuance renders his prior and current
Rule 60(b) motions untimely.
What is more, Petitioner fundamentally misapprehends Kemp in several
respects. At the end of his affidavit, Petitioner explains that
Kemp marks a shift in the Court’s conception of the
function of Rule 60(b)(6) which portends well for the
finally and error correction and an increased role in
constitutional development for the federal courts. If
only, in inadvertent legal errors are “mistakes,” all other
legal error would fit elsewhere in Rule 60(b)(6), which
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collectively covers the waterfront of grounds for
reopening. Yet, obvious, deliberate legal errors could be
raised later under 60(b)(6).
(Dkt. #53 at 17). However, as discussed earlier, the Kemp Court rejected the
litigants’ efforts to limit Rule 60(b)(1) to “obvious” or “non-judicial, non-legal”
errors, Kemp, 142 S. Ct. at 1862-63, and instead extended it to include “all
mistakes of law made by a judge,” id. at 1862. Moreover, Kemp did not purport
to alter existing case law restricting the applicability of Rule 60(b)(6), including
the “reasonable time” requirement set forth in Rule 60(c)(1). And, as noted
earlier, Kemp confirmed that relief under Rule 60(b)(6) was “available only
when Rules 60(b)(1) through (b)(5) are inapplicable.” Id. at 1861 (citing
Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863 n.11 (1988)).
For all of these reasons, Kemp does not provide a basis for this Court to
reopen the September 2010 Order. The Court accordingly denies Petitioner’s
motion to reopen. Because Petitioner has not made a substantial showing of
the denial of a constitutional right, the Court will not issue a certificate of
appealability. See 28 U.S.C. § 2253(c). The Court further certifies under 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 an
appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
The Clerk of Court is directed to terminate the motion at docket entry 52
and to mail a copy of this Order to Petitioner at his address of record.

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SO ORDERED.
Dated: November 1, 2022
New York, New York
KATHERINE POLK FAILLA
United States District Judge

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