Woodason v. United States of America

Filing 5

MEMORANDUM OPINION & ORDER: Through his attorney, petitioner James M. Woodason brings a motion for relief from judgment under Fed. R. Civ. P. 60(b). For the following reasons, the motion is treated as a successive petition for a writ of habeas corpus. Woodason shall have thirty days to withdraw the motion, or it shall be referred to the Court of Appeals as a successive petition. (Signed by Judge Denise L. Cote on 9/4/2014) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JAMES M. WOODASON,
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:
Petitioner
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-v:
UNITED STATES OF AMERICA,
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:
Respondent.
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13cv2020 (DLC)
10cr1156 (DLC)

MEMORANDUM OPINION
AND ORDER

APPEARANCES
For the Petitioner:
Stephen M. Smith
1425 N. Broad Street, Suite 201
New Orleans, LA 70119
DENISE COTE, District Judge:
Through his attorney, petitioner James M. Woodason brings a
motion for relief from judgment under Fed. R. Civ. P. 60(b).
For the following reasons, the motion is treated as a successive
petition for a writ of habeas corpus.

Woodason shall have

thirty days to withdraw the motion, or it shall be referred to
the Court of Appeals as a successive petition.
In 2010, Woodason entered a plea of guilty to a four-count
Information charging him with a scheme to defraud his former
employer, Con Edison.

On December 9, 2011, Woodason was

sentenced principally to seventy months’ imprisonment.
did not appeal.

Woodason

On March 26, 2013, Woodason filed a petition for a writ of
habeas corpus.

On February 20, 2014, the petition was denied as

untimely, and the Court declined to issue a certificate of
appealability.

Woodason v. United States, 13cv2020 DLC, 2014 WL

657529, at *3 (S.D.N.Y. Feb. 20, 2014).

Woodason neither sought

reconsideration of that decision nor filed an appeal from it.
At this point, a motion to reconsider the February 20, 2014
decision would itself be untimely.

See S.D.N.Y. Local Rule 6.3

(“[A] notice of motion for reconsideration . . . shall be served
within fourteen (14) days after the entry of the Court’s
determination of the original motion . . . .”).
On August 27, 2014, Woodason filed the instant motion.
Although styled as a motion for relief from judgment under Rule
60(b), it is in substance a renewed petition for a writ of
habeas corpus.

The current motion again attacks the underlying

conviction on the ground that Woodason received ineffective
assistance from his attorney.

See Harris v. United States, 367

F.3d 74, 82 (2d Cir. 2004) (“[A] Rule 60(b) motion that attacks
the underlying conviction presents a district court with” the
option to “treat the Rule 60(b) motion as a second or successive
habeas petition . . . .”

(citation omitted)).

Pursuant to 28 U.S.C. § 2255(h), “[a] second or successive
motion must be certified as provided in section 2244 by a panel
of the appropriate court of appeals.”
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Section 2244 provides

that “[b]efore a second or successive application permitted by
this section is filed in the district court, the applicant shall
move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”
U.S.C. § 2244(b)(3)(A).

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Therefore, a second or successive

habeas petition filed initially in the district court must be
transferred to the court of appeals.

Liriano v. United States,

95 F.3d 119, 123 (2d Cir. 1996) (per curiam).

The Second

Circuit has stated that district courts should
be careful not to recharacterize a portion of the
60(b) motion as a second or successive collateral
attack and transfer it to [the court of appeals] until
the prisoner has been informed of the district court's
intent to transfer and afforded a sufficient
opportunity to avoid the transfer by withdrawing . . .
the portion of his 60(b) motion that the district
court believes presents new challenges to the
underlying conviction.
Harris, 367 F.3d at 82 (citation omitted).
Woodason seeks to circumvent the one-year time limitation
for filing a habeas petition by invoking the excusable neglect
doctrine.

It is true that under Fed. R. Civ. P. 60(b)(1),

“excusable neglect” provides a reason for which “the court may
relieve a party . . . from a[n] . . . order.”

But Woodason’s

excuses for failing to file his habeas petition on time were
already considered and rejected in the February 20, 2014
decision denying the petition on the ground of untimeliness.
Woodason, 2014 WL 657529, at *2-3.
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And the instant motion

offers no analysis or facts to suggest that the February 20,
2014 decision was incorrect.

Accordingly, it is hereby

ORDERED that petitioner is given notice of the Court's
intent to treat the motion as a successive habeas petition and
given thirty days to withdraw the motion, if he elects to do so.
If petitioner does not withdraw the motion within thirty days,
it will be transferred to the U.S. Court of Appeals for the
Second Circuit for treatment as a successive petition.
Dated:

New York, New York
September 4, 2014
__________________________________
DENISE COTE
United States District Judge

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