Davis v. The People of New York State

Filing 26

OPINION AND ORDER: re: 24 MOTION for Reconsideration re; 20 Clerk's Judgment,,. filed by Raul Davis. Accordingly, in order to give Davis notice and conserve judicial resources, this Court denies Davis's motion as beyond the scop e of Rule 60(b). See Peace, 2011 WL 2471067, at *2. If he so chooses, Davis may seek an order from the Court of Appeals authorizing a second habeas petition. For the reasons set forth above, Davis's Rule 60(b) motion is denied. The Court certifies pursuant to 28 U.S.C.§1915(a)(3) that any appeal from this Opinion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Sidney H. Stein on 11/6/2017) (js)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
RAUL DAVIS,
Petitioner,
-againstTHE PEOPLE OF NEW YORK STATE
Respondent.

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07-Cv-9265 (SHS)

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OPINION AND ORDER

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SIDNEY H. STEIN, U.S. District Judge.
Raul Davis brings this prose motion pursuant to Federal Rule of Civil
Procedure 60(b) for relief from this Court's 2011 denial of his petition for a
writ of habeas corpus. See Davis v. People, No. 07-Cv-9265, 2011 WL
2518951 (S.D.N.Y., May 18, 2011) (report and recommendation), adopted
2011WL2519206 (S.D.N.Y. June 23, 2011). That motion is denied as
beyond the scope of Rule 60(b).

I.

BACKGROUND
A.

State Criminal Proceedings

On February 26, 2003, Davis was convicted by a Bronx jury of murder
in the second degree, criminal possession of a weapon in the second
degree, and criminal possession of a weapon in the third degree. Davis,
2011 WL 2518951, at *6. On April 15, 2003, Davis was sentenced to a term
of twenty-five years to life, which he is currently serving at Sullivan
Correctional Facility. Id.

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Represented by counsel, Davis appealed his conviction to the
Appellate Division, First Department, where he asserted that his
constitutional rights had been violated in the trial court. The Appellate
Division rejected Davis's arguments and affirmed his conviction on June
26, 2007. People v. Davis, 839 N.Y.S.2d 50 (1st Dep't 2007). Davis's counsel
asked the New York Court of Appeals for leave to appeal. The request
included the arguments that were rejected by the Appellate Division, plus
an ineffective assistance of counsel claim. Davis, 2011 WL 2518951, at *7.
Davis's request for leave to appeal was denied on July 26, 2007. Id.; see

People v. Davis, 9 N.Y.3d 864 (2007).
Acting prose, Davis then filed a motion in New York Supreme Court,
Bronx County, to vacate his judgment of conviction. Davis claimed that
his trial attorney had failed to examine prosecution witnesses about the
victim's gang involvement, even though the trial judge was willing to
allow such examination if counsel laid a proper foundation. Davis argued
that this failure rendered his trial counsel's assistance constitutionally
ineffective. Davis, 2011 WL 2518951, at *7. The court denied Davis's
motion on the merits on January 15, 2009, and the Appellate Division
denied Davis's request for leave to appeal on May 5, 2009. Id.

B. Federal Habeas Petition
Davis also filed a pro se petition for habeas corpus in this Court, raising
essentially the same arguments that the state courts had rejected. This
Court referred the case to Magistrate Judge Frank Maas for a Report and
Recommendation ("R&R"). Id. Judge Maas found that Davis's claims
were procedurally barred because the state court's prior denial rested on
adequate and independent state grounds, and Davis failed to exhaust one
of his claims in state court. Nonetheless, Judge Maas proceeded to the
merits of all of Davis's claims, and rejected them on the merits in his May
18, 2011, R&R. Reviewing Judge Maas' s R&R de nova, this Court adopted
it and dismissed Davis's petition on June 23, 2011. Davis v. People, No. 07-

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Cv-9265, 2011WL2519206 (S.D.N.Y., June 23, 2011). Davis filed a notice
of appeal on July 14, 2011, and on September 30, 2011, the appeal was
deemed by the U.S. Court of Appeals for the Second Circuit to be in
default for failure to pay the filing fee and was dismissed. Mandate of
USCA, Sept. 30, 2011, ECF No. 23.
C.

This Motion

Davis now seeks relief pursuant to Rule 60(b) from this Court's denial
of his habeas petition. He argues that he was entitled to an evidentiary
hearing to pursue the claim of ineffective assistance of trial counsel
asserted in his habeas petition, and that he did not get such a hearing
because his "jailhouse lawyer" neither asked for one nor objected to Judge
Maas's R&R. Affidavit in Support of Motion at<[ 10, ECF No. 25. Davis
seeks relief from the judgment dismissing his habeas petition in order to
now proceed with an evidentiary hearing.

II. DISCUSSION
Rule 60(b) allows for relief from a final judgment, order, or proceeding.
Fed. R. Civ. P. 60(b). Although a motion may be styled as a Rule 60(b)
motion, when it asks for relief from denial of a habeas petition, it may in
certain circumstances be considered a second or successive habeas
petition. Gonzalez v. Crosby, 545 U.S. 524, 531 (2005); see also Harris v.

United States, 367 F.3d 74, 77 (2d Cir. 2004); Peace v. United States, No. 05Cv-1854, 2011WL2471067, at *2 (S.D.N.Y. June 21, 2011). If a Rule 60(b)
motion advances a substantive claim for relief that has been previously
denied on the merits in a habeas petition, then the Rule 60(b) motion is
properly considered to be a second or successive habeas petition.

Gonzalez, 545 U.S. at 531; compare Peace, 2011WL2471067, at *2
(considering a Rule 60(b) motion as a second or successive habeas petition
where the claim for relief was denied on the merits in a habeas proceeding),

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with Alston v. Lee, No. 01-Cv-2889, 2013 WL 3009739, at *2 (considering a
Rule 60(b) motion without construing it as a second or successive habeas
petition, where the claim for relief was procedurally barred in a habeas
proceeding for failure to exhaust).
Conversely, "when a Rule 60(b) motion attacks[] not the substance of
the federal court's resolution of a claim on the merits, but some defect in
the integrity of the federal habeas proceedings," then the motion does not
count as a second or successive habeas petition. Gonzalez, 545 U.S. at 532;
see Harris, 367 F.3d at 77 (permitting Rule 60(b) relief from a previous
habeas proceeding only when the "motion attacks the integrity of the
previous habeas proceeding rather than the underlying criminal
conviction"); Peace, 2011 WL 2471067, at *2.
Davis's Rule 60(b) motion challenges his underlying conviction, not
the integrity of the prior habeas proceedings. Therefore, it is a second
habeas petition. Davis contends, as he did in his first habeas petition, that
his trial counsel was ineffective because he failed to examine one of the
government's witnesses about the victim's alleged gang involvement.

Compare Motion at <_II 7; with Davis, 2011WL2518951, at *15-16. That claim
was rejected on the merits in the prior proceeding. Davis, 2011 WL
2518951, at *15-16. To the extent Davis attacks the integrity of the habeas
proceedings by contending that the "jailhouse lawyer," Affidavit in
Support of Motion at<_!{<_!{ 10, 14, ECF No. 25, who assisted him rendered
constitutionally ineffective counsel by not requesting an evidentiary
hearing and by not objecting to Judge Maas' s R&R, such an argument is
frivolous: the R&R itself and the absence of any notice of appearance on
the docket each reflect that Davis was acting prose. Any assistance that he
may have been provided by a "jailhouse lawyer" was not a legal
representation.
Because Davis's motion is a second or successive habeas petition, he
cannot rely on the line of recent U.S. Supreme Court decisions he cites,

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which address when relief from judgment is proper under Rule 60.
Unlike here, the initial petitions in those cases were denied on procedural
grounds rather than the merits, and so the Rule 60 motions at issue in
those appeals were not second or successive habeas petitions. See Buck v.

Davis, 137 S. Ct. 759, 771 (2017); Trevino v. Thaler, 133 S.Ct. 1911, 1916
(2013); Martinez v. Ryan, 566 U.S. 1, 7-8 (2012).
The Anti-Terrorism and Effective Death Penalty Act limits federal
prisoners' ability to file a second or successive habeas petition. See 28
U.S.C. § 2255(h). To file a second or successive habeas petition, a federal
prisoner must receive certification from the Court of Appeals that the
petition contains newly discovered evidence or a new rule of
constitutional law made retroactive by the Supreme Court to cases on
collateral review. Id. Because Davis's Rule 60(b) motion is a second
habeas petition, this Court may not consider it without authorization from
the Second Circuit. The Court therefore has two options: it may either
transfer the motion to the Second Circuit for possible certification or it
may simply deny the motion as beyond the scope of Rule 60(b). See

Harris, 367 F.3d at 82 (citing Gitten v. United States, 3U F.3d 529, 534 (2d
Cir.2002)); Peace, 2011WL2471067, at *2. The Second Circuit suggests that
a district court should give a prisoner notice before transferring a Rule
60(b) motion to the Court of Appeals as a second or successive habeas
petition in order that the prisoner be given an opportunity to withdraw or
restyle the motion. See Gitten, 311 F.3d at 534. Accordingly, in order to
give Davis notice and conserve judicial resources, this Court denies
Davis's motion as beyond the scope of Rule 60(b). See Peace, 2011 WL
2471067, at *2. If he so chooses, Davis may seek an order from the Court
of Appeals authorizing a second habeas petition.

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III. CONCLUSION
For the reasons set forth above, Davis's Rule 60(b) motion is denied.
The Court certifies pursuant to 28U.S.C.§1915(a)(3) that any appeal from
this Opinion would not be taken in good faith. See Coppedge v. United

States, 369 U.S. 438, 444-45 (1962).

Dated: New York, New York
November 6, 2017
SO ORDERED:

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