Jimenez v. Phillips

Filing 16

OPINION: re: 13 MOTION to Vacate 8 Clerk's Judgment,. filed by Jose Jimenez. Based upon the conclusions set forth in this Opinion, Petitioner's motion to vacate is denied. (Signed by Judge Robert W. Sweet on 6/20/2012) (pl) Modified on 6/26/2012 (pl).

USDCSDNY

DOCUMENT
ELECfRONICALLY FILED

lffiITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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~~~~iLEri-:-~~~ j

L

--­

JOSE JIMENEZ,
Petitioner,

04 Civ. 10155

-against-

OPINION

WILLIAM PHILLIPS,
Respondent.
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-------­

---------------­

X

A P PEA RAN C E S:

Petitioner Pro Se
JOSE JIMENEZ
Green Haven Correctional Facility
Southern District of New York
P.O. Box 4000
Stormvil ,NY 12582

Attorney for Respondent William Phillips
ROBERT T. JOHNSON
District Attorney, Bronx County
198 East 161st Street
Bronx, NY 10451
By: Na Na Park, Esq.
Nancy D. Killian, Esq.

I

Sweet, D.J.

Petitioner Jose Jimenez ("Jimenez," or the
"Petitioner") has filed a request, pursuant to Fed. R. Civ. P.
60(b), to vacate the Court's judgment dated January 16, 2006
(the "2006 Opinion"), which dismissed the Petitioner's pet

ion

writ of habeas corpus filed against Respondent William Phillips
("Phillips," or the "Respondent").

Based upon the conclusions

set forth below, Petitioner's motion to vacate is denied.

Prior Proceedings

The

s of the case and its prior proceedings are

described in detail in the 2006 Opinion.
Phill

See Jimenez v.

, No. 04 Civ. 10155 (RWS) , 2006 WL 118369 (S.D.N.Y. Jan.

16, 2006).

Following a jury trial, Petitioner was convicted on

May 7, 1998 in the Supreme Court

the State

New York, Bronx

County, of one count of murder in the second degree and one
count of robbery in the f

degree.

Petitioner was sentenced

to terms of imprisonment of 25 years to life for the first count
and eight and a half to 25 years for the second count, to run
concurrently.

The Appellate Division, First Department,

affirmed the convict

on direct appeal on June 1, 2000.
1

See

v. Jimenez, 273 A.D.2d 9, 710 N.Y.S.2d 243
2000).

(1st Dep't

The New York Court of Appeals denied leave to appeal to

that court on October 26, 2000.

See

--~---------------

, 95

N.Y.2d 906, 716 N.Y.S.2d 646 (2000).

In an appl

ion dated July 10, 2001, Petitioner

moved the Appellate
error coram nobis,

sion First Department for a writ of
leging that his

tive for fail

to raise the

llate counsel was
aim that he was

his right to be present during peremptory challenges at voir
and the claim that the trial court
his right to be present.

iled to inform him of

In a subsequent motion dated March 5,

2002, Petitioner moved the trial court to vacate the judgment of
conviction pursuant to New York Criminal Procedure Law
claiming that his trial counsel was inef

§

440.10,

and that the

indictment was defective because it failed to enumerate the
elements of the crimes that were charged.
Supreme Court denied the motion sua sponte.
the Appel

On

1 4, 2002, the
On June 20, 2002,

Division denied both Petitioner's leave to appeal

the lower court's denial of

s

§

coram nobis.

2

440.10 motion and his writ of

On November I, 2004, Petitioner filed a writ of habeas
corpus in this Court, claiming (1) that the tri

court's

reasonable doubt charge denied his due process right to a fair
t

in violation of the Fourteenth Amendment of the United

States Constitution and Article I, section 6 of the New York
Constitution;

(2)

ineffective assistance of counsel at the tri

and appellate levels in violation of the Sixth and Fourteenth
Amendments of the

ted States Constitution; and (3) that the

trial court did not have jurisdiction over him.
Opinion, Petitioner's petition

In the 2006

a writ of habeas corpus was

denied on the basis that the motion was time-barred by
Antiterrorism

fective Death Penalty Act's ("AEDPA") one-year

statute of limitations, see 28 U.S.C.
Petit

had

§

2244, and that

iled to allege any facts that would justify

equitable tolling of the limitation period.

On March 15, 2007,

the United States Court of Appeals for the Second Circuit denied
Petitioner's motion for a certificate of appealability.

Petitioner filed his present motion to vacate the
Court's judgment pursuant to Rule 60(b) on April 30, 2012.
on May 30.

motion was marked fully submit

Applicable Standard

3

The

Fed. R. Civ. P. 60(b) provides that a district court
may relieve a party from a f

1 judgment or order in f

enumerated circumstances and for "any other reason
justifies relief."

Fed. R. Civ. P. 60(b)(1)

(6).

"Motions

under Rule 60(b) are addressed to the sound discretion

the

district court and are generally granted only upon a showing of
exceptional circumstances."

Mendell In Behalf of Viacom, Inc.

v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)
Baker, 793 F.2d 58, 61 (2d Cir. 1986)).

(1)

there must

motioni

of

"The Second Circuit has

-prong test in order for a Rule 60(b) motion to

set forth a
succeed:

(citing Nemaizer v.

(2)

highly convincing evidence in support
moving party must show good cause for

ling to act sooneri and (3) the moving party must show that
granting the motion will not impose an undue hardship on any
party."

Esposito v. New York, No. 07 Civ. 11612 (SAS) , 2010 WL

4261396, at *2

(S.D.N.Y. Oct. 25, 2010)

(citing Kotlicky v. U.S.

Fid. Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987)).

"The heavy

burden for securing relief from final judgments applies to pro
se litigants as well as
v. Ci

*3

represented by counsel."

Broadway

of New York, No. 96 Civ. 2798 (RPP) , 2003 WL 21209635, at

(S •D . N . Y .

May 2 I, 2 0 0 3) •

4

In addressing the present motion, the Court is mindful
that Petitioner is proceeding pro se and that his submissions
are held to "less stringent standards than formal pleadings
drafted by lawyers .

"

Hughes v. Rowe, 449 U.S. 5, 9, 101

S.Ct. 173, 66 L.Ed.2d 163 (1980)

(quoting Haines v. Kerner, 404

U.S. 519, 520, 92 S.Ct. 594, 30 L.

.2d 652

(1972)).

The courts

"construe the pleadings of a pro se plaintiff liberally and
interpret them to raise the strongest arguments they suggest."
Fuller v. Armstrong, 204 Fed. Appx. 987, 988
also

(2d Cir. 2006) i see
, 232 F.3d 135,

139 40 (2d Cir. 2000)

("Since most pro se plaintiffs lack

familiarity with the formalities of pleading requirements, we
must construe pro se complaints liberally, applying a more
flexible standard to evaluate their sufficiency than we would
when reviewing a complaint submitted by counsel.").

However,

the courts will not "excuse frivolous or vexatious filings by
pro se litigants," Iwachiw v. N.Y. State
Vehi

-----

't of Motor

, 396 F.3d 525, 529 n.1 (2d Cir. 2005), and "pro se

status 'does not exempt a party from compliance wi
rules of procedural and substantive law.'"

Triestman v. Fed.

Bureau of Prisons[ 470 F.3d 471, 477 (2d Cir. 2006)
Traguth v. Zuck, 710 F.2d 90, 95 (2d

5

relevant

.1983».

(quoting

Petitioner's Motion To Vacate The 2006 Opinion Is Denied

Petitioner's pleading is at times difficult to
interpret, but in reading his motion to raise the strongest
argument it suggests, it appears that Petitioner is contending
that the statute of limitations for his habeas filing should be
equitably tolled because Petitioner has established
extraordinary circumstances that prevented him from filing his
petition on time.

Petitioner states that, although he acted

with reasonable diligence, he was mislead by his counsel, Alirez
Imaghani, Esq.

Petitioner contends that, following the sudden

death of his former counsel Dani
wrongful
process

ll

C. Furman, Esq., Dilmaghani

informed him that his habeas petition was "in
and that he was mislead by counsel.

Petitioner, Dilmaghani

According to

defrauded other clients, thereby

supporting his contention that Dilmaghani caused Petitioner's
habeas petition to be untimely filed.

In support of his motion, Petitioner attaches various
exhibits:

(1) an email dated March 30, 2004 from "Furman Law" to

Petitioner's wi
assigned

stating that Petitioner's case "has been re­

further investigationi"

2004 from "Furman Law

ll

(2) an email dated June 9,

to Petitioner's wi
6

stating, in part,

"Your husbands case is in process.
will let you know.

Thank you.

When we have an answer we

Al Dilmaghani."i

dated August 30, 2004 from Petitioner to
sympathies with re

to the passing

(3) a letter

Imaghani expressing
Mr. Furman, asking if

a writ of habeas corpus has been filed on Petitioner's behalf,
requesting a copy

the papers and request

Dilmaghani testifying as to what has transpi

an affidavit from
regarding

Petitioner's legal file so that Petitioner can file a request
for equitable tollingi

(4) a letter from Alirez Dilmaghani,

acting as probate counsel for the Estate of Daniel Furman,
informing Mr. Furman's cl

s of Mr. Furman's pass

the fact that all staff attorneys, with the except

and of
of

Imaghani, have resigned and that any legal documents will be
mailed to Mr. Furman's clients under separate coveri

(5) an

unknown origin entitled "FBI

1 dated May 29, 2011

Freedom Forum Unmasked Newsletter / Were You A Victim
rm(s) Called the Freedom Forum

the Law

New York City, Furman Law

Firm, and/or Alirez Dilmaghani" and detailing various all
wrongdoings on the part of

Imaghanii and (6) an undated

article entitled"
the highlighted statement,
Alire

bust Rainmaker," which includes

"The SEC said that three defendants,
and J.J Conway paid

Dilmaghani, Sidney F.

7

themse

s over $3.75 million and paid another $850,000 of

investors' money back to

ected investors as interest."

The moving party bears the burden of establishing good
cause for a delay in filing a Rule 60(b) motion.
F.2d at 9.

, 817

To satisfy that burden, the movant must provide

evidence that is "highly convincing.
omitted).

Kotli

II

Id. at 9 (citation

Here, Petitioner filed his Rule 60(b) motion on April

30, 2012, seeking to vacate an order this Court issued on
January 16, 2006.

Notwithstanding Petitioner's contentions, the

motion to vacate is time barred, as Fed. R. Civ. P. 60(c)
requires that "[a] motion under Rule 60(b) must be made within a
reasonable time."

To determine what constitutes a "reasonable"

amount of time, the Court must "look at the particular
circumstance of

case and 'balance the interest in finality

with the reasons for delay. '"

Grace v. Leumi Trust Co. of N.Y.,

443 F. 3 d 180, 190 n. 8 ( 2 d Ci r. 2006)
at 9).

(cit i ng Ko t 1 i

, 817 F.2d

This motion, made over six years after this Court's

entry of judgment, is time-barred, especially because Petitioner
has offered no explanation for his delay.
delays much shorter than s
the context

Courts have found

years to be unreasonably long

Rule 60(b) motions.

See, e.g., Kel

Strack, 269 F.3d 100, 104 (2d Cir. 2001)
8

v.

--='-=--=-=-~"----'-

("Kellogg's motion was

made twenty-six months after the entry of the final judgment, a
period of t

which constitutes a patently unreasonable delay

absent mitigating circumstances. H) ;
F.3d 191, 201 (2d Cir. 2001)

z v. Mitchell, 252

("We do not think that three and

one-half years from the date judgment was entered is a
reasonable time. II); James v. United States, 603 F. Supp. 2d 472,
479 (E.D.N.Y. 2009)

("Petitioner waited over twenty-one months

before filing this motion on February 7, 2005.
not explained this delay.

Petitioner has

Federal courts have found unexcused

delays shorter than twenty-one months to be unreasonable and
therefore, time-barred .

. Accordingly, the court finds that

the [] claim as not made within a reasonable time and may not be
considered. ")

(citations omitted).

Petitioner's exhibits date

back to 2004, and Petitioner had articulated no reason why he
waited until 2012 to file this motion to vacate.

Although

Petitioner contends that "extraordinary circumstances" justify
his motion's lack of timeliness, his arguments concerning these
"extraordinary circumstances" relate to his failure to comply
with the one-year statute of limitat

imposed by AEDPA rather

than the "reasonable time" limitation imposed under Rule 60(b)
Because of the unreasonable delay between the Court's 2006
Opinion and the present motion, Petitioner's motion to vacate is
deni
9

Conclusion

upon the conclusions set forth above,
Petitioner's motion to vacate is denied.

It is so ordered.

New York, NY
June v-O, 2012

SWEET
U.S.D.J.

10