Mills v. Lempke et al
-CLERK TO FOLLOW UP- DECISION AND ORDER denying 45 Motion to Vacate with prejudice ; denying 45 Motion for Recusal with prejudice consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 9/29/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsSuperintendent T. POOLE,
DECISION AND ORDER
-vsJOHN B. LEMPKE,
Pro se petitioner Richard Mills (“Petitioner”) has filed
identical Motions to Vacate the Judgment Pursuant to Federal Rule
of Civil Procedure 60(b) (“Rule 60(b)”) in both of the abovecaptioned
reasons discussed below, the Court denies Petitioner’s Motions to
Vacate and denies Petitioner’s requests for recusal.
The Court assumes the parties’ familiarity with the extensive
procedural history of Petitioner’s convictions, sentencing, re-
challenging these events.
After this Court denied his most recent request for a writ of
habeas corpus, Petitioner appealed to the United States Court of
Appeals for the Second Circuit, which denied Petitioner’s motion
for a certificate of appealability on May 31, 2013. On October 22,
2013, that court rejected his request for a rehearing en banc.
On October 7, 2013, the United States Supreme Court denied
Petitioner’s petition for a writ of certiorari, and further stated
that because Petitioner had “repeatedly abused th[at] Court’s
process[,]” his petitions in non-criminal matters would be rejected
unless he first paid the docketing fee and the petitions were
submitted in compliance with Supreme Court Rule 33.1.
Meanwhile, at the state court level, Petitioner
his 2011 resentencing via a state law habeas corpus petition filed
in New York State Supreme Court of Seneca County. After Seneca
County Supreme Court (Bender, A.J.) declined to issue the writ,
Petitioner, with the assistance of assigned counsel, appealed to
the Appellate Division, Fourth Department, of New York State
Supreme Court, which unanimously affirmed the judgment. People ex
rel. Mills v. Lempke, 112 A.D.3d 1365, 978 N.Y.S.2d 511 (4th Dep’t
2013). In particular, the Fourth Department rejected Petitioner’s
contention that he was being unlawfully detained based on the
County Court’s failure to file an amended order of commitment after
“‘[i]rregularities or defects in an order of commitment would not
entitle [P]etitioner to immediate release where, as here, there is
a valid judgment of conviction underlying the commitment[.]’”
Mills, 978 N.Y.S.2d at 512 (quotation and citations omitted). The
Fourth Department concluded that “even assuming, arguendo, that his
right to due process was violated, . . . [P]etitioner would only be
entitled to a new sentencing proceeding, and thus habeas corpus
Petitioner’s Ex Post Facto challenge to N.Y. Penal Law § 70.85 was
found unpreserved and without merit. Id.
The New York Court of
Appeals denied leave to appeal. People ex rel. Mills v. Lempke,
22 N.Y.3d 684 (2014), rearg. denied, __ N.E.3d __, 2014 WL 2609619
(N.Y. June 12, 2014).
Also with the assistance of assigned counsel, Petitioner
pursued a direct appeal with regard to his 2011 resentencing. On
affirmed Petitioner’s resentencing. People v. Mills, 117 A.D.3d
1555, 985 N.Y.S.2d 381 (4th Dep’t 2014). The majority rejected his
resentencing in his absence and without assigning counsel, finding
that such an argument was “not properly before” it because an
appellate division “may only ‘consider and determine any question
of law or issue of fact involving error or defect . . . which may
have adversely affected the appellant[.]’” Mills, 985 N.Y.S.2d at
383 (quoting N.Y. CRIM. PROC. LAW § 470.15(1); ellipsis in original).
resentencing was whether the County Court would impose a term of
post-release supervision (“PRS”). However, the prosecutor already
had informed the County Court as well as Petitioner, in writing,
that he would consent to the reimposition of the original sentence,
i.e., 15 years without any period of PRS. Because the County Court
did reimpose the original sentence, Petitioner “was not adversely
affected by any error, because the result, i.e., freedom from
having to serve a term of PRS [with respect to this count of the
alteration in original).
One justice of the Fourth Department dissented and urged
remittitur for a further resentencing. See Mills, 985 N.Y.S.2d at
384 (J. Fahey, dissenting). Justice Fahey relied primarily on two
sections of New York’s Criminal Procedure Law, both of which apply
to resentencing, and which provide that a defendant “[i]n general
pronounced[,]” N.Y. CRIM. PROC. LAW § 380.40(1); and must be asked by
the sentencing court “whether he . . . wishes to make a . . .
statement[,]” id., § 380.50(1) on his behalf at sentencing. The
dissenting justice noted that the state legislature had “built no
380.40(1) and 380.50(1), and opined that the court should not find
one in Petitioner’s case. Id.
The Fourth Department denied reargument on July 3, 2014.
People v. Mills, 119 A.D.3d 1388, 988 N.Y.S.2d 520 (4th Dep’t 2014).
Petitioner indicates that he has sought leave to appeal to the New
York Court of Appeals, and that his application is currently
In these motions, Petitioner seeks orders (1) vacating the
judgments in the above-captioned matters “upon the grounds of
Judge Arcara, and Judge Bianchini” pursuant to 28 U.S.C. §§ 453,
455; and “appointing a tribunal as a special investigator to
investigate the fraud upon this court.” Dkt #45 at 1.1
On May 8, 2014, the Court issued an Order (Dkt #47) directing
Respondents to respond to Petitioner’s motions to vacate and for
recusal. However, only the respondent in the 2011 case filed a
response (Dkt #48), to which Petitioner filed a reply (Dkt #49).
The Rule 60(b) Motions
A motion to reopen a habeas proceeding under Rule 60(b) is
permissible where it “relates to the integrity of the federal
The Motions to Vacate in both cases are identical. For brevity’s sake, the
Court will cite only to the docket numbers and page numbers of the pleadings
filed in 1:11-cv-00440-MAT.
habeas proceeding, not to the integrity of the state criminal
Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001);
see also Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). If granted,
proceeding.” Rodriguez, 252 F.3d at 199. “Since 60(b) allows
extraordinary judicial relief, it is invoked only upon a showing of
exceptional circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61
(2d Cir. 1986) (citations omitted; emphases supplied). The Second
Circuit reviews a district court’s decision whether to grant relief
under Rule 60(b) for the “abuse of discretion.” Harris v. United
Carpenter, 120 F.3d 361, 365 (2d Cir. 1997)).
Rule 60(b) permits a party to seek relief from a prior
judgment under for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (2) newly discovered evidence that, with
reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b); (3) fraud
(whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged; it is based on an
earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.
FED. R. CIV. P. 60(b). Rule 60(c) provides that “[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
CIV. P. 60(c).
Although Petitioner asserts that he is bringing his motions to
pleadings do not present any of the discrete grounds for relief
enumerated in Rule 60(b)(1), (2), (3), (4), or (5). Rather, his
90-page memorandum of law is devoted to repeating his arguments
regarding the myriad errors he claims occurred during his trial and
resentencing. These arguments already have been raised before, and
rejected by, three judges of this District.
It is clearly settled law, however, that a motion under
Rule 60(b) “cannot serve as an attempt to relitigate the merits” of
a prior decision. Fleming v. New York Univ., 865 F.2d 478, 484
(2d Cir. 1989) (citing Mastini v. American Tel. & Telegraph Co.,
369 F.2d 378, 379 (2d Cir. 1966) (Rule 60(b) movant asserted “only
the single ground that ‘the defendants have improperly influenced
unconscionable plan or scheme of defense based upon a great deal of
misrepresentations and misconducts’”, which was an impermissible
“unsubstantiated” allegations of fraud), cert. denied, 387 U.S. 933
Nederlandsche Handel–Maatschappij, N.V. v. Jay Emm, Inc.,
301 F.2d 114, 115 (2d Cir. 1962)). Because Petitioner points only
considered his habeas petitions, he has not established sufficient
grounds for relief under Rule 60(b)(1), (2), (4), or (5). See,
e.g., Aboushi v. United States, No. 05-CV-1244(FB), 2007 WL 776812,
at *2 (E.D.N.Y. Mar. 13, 2007) (denying Rule 60(b) motion where
§ 2255 petitioner did not present any of the grounds for relief
enumerated in Rule 60(b) but “simply reargue[d] a claim previously
resolved by” the district court in an earlier order).
The Court turns next to clause (3) of Rule 60(b). Although
Petitioner urges vacatur of his judgments based on “fraud”, he does
not allege fraud, misrepresentation or other misconduct “by an
opposing party[,]” FED. R. CIV. P. 60(b)(3). Rather, Petitioner
levies accusations of “fraud” against the “judicial officers of
this court” (i.e., the undersigned, District Judge Arcara, and
Magistrate Judge Bianchini), whom he alleges “have intentionally
placed fraud on this Court”, “are intentionally condoning fraud”,
and have failed to “perform [their] judicial function[s]”. Dkt #451 at 1 (citing Bulloch v. United States, 763 F.2d 1115, 1112 (10th
Cir. 1985) (en banc)).
Thus, instead of fraud by an opposing
ostensibly is complaining of “fraud upon the court”, which is not.
However, Rule 60(d) provides that Rule 60 “does not limit a
court’s power to . . .
set aside a judgment for fraud on the
court.” FED. R. CIV. P. 60(d)(3).2 Petitioner, as “the party alleging
fraud on the court[,] bears a heavy burden to prove the fraud by
clear and convincing evidence[.]” Orient Mineral Co. v. Bank of
opn.); see also Nederlandsche Handel–Maatschappij, N.V., 301 F.2d
at 115 (Rule 60(b)(3) movant must show fraud or misrepresentation
“by clear and convincing evidence”). It bears emphasizing that “all
doubts must be resolved in favor of the finality of the judgment.”
Bulloch, 763 F.2d at 1121.
The Federal Rules of Civil Procedure do not define “fraud on
the court”, but Rule 60(b) makes clear that fraud on the court must
be distinguished from the fraud, misrepresentation, and other
Rule 60(b)(3). In re Tri-Cran, Inc., 98 F.R. 609, 615 (Bankr. D.
Mass. 1989) (“Tri-Cran”) (citing Kupferman v. Consolidated Research
& Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972)
(“[Fraud upon the
court] cannot be read to embrace any conduct of an adverse party of
which the court disapproves; to do so would render meaningless the
one-year limitation on motions under Rule 60(b)(3)”)). In Bulloch,
from which Petitioner quotes heavily, the Tenth Circuit explained
Although Petitioner does not refer to Rule 60(d), the Court has liberally
construed his pro se pleadings to raise the strongest arguments they suggest. See
Haines v. Kerner, 404 U.S. 519, 520 (1971) (stating that “the allegations of the
pro se complaint” are “h[e]ld to less stringent standards than formal pleadings
drafted by lawyers”).
[f]raud on the court . . . is fraud which is directed to
the judicial machinery itself . . . . It is thus fraud
where the court or a member is corrupted or influenced[,]
or influence is attempted[,] or where the judge has not
performed his judicial function. . . .
Bulloch, 763 F.2d at 1121. The Second Circuit adopted a similar
definition in Kupferman:
[T]he concept should “embrace only that species of fraud
which does or attempts to defile the Court itself, or is
a fraud perpetrated by officers of the Court so that the
judicial machinery cannot perform in the usual manner its
impartial task of adjudging cases that are presented for
Kupferman, 459 F.2d at 1078 (quoting 7 Moore, FEDERAL PRACTICE,
¶ 60.33 at 515 (1971 ed.); footnote omitted in original); citing
Martina Theatre Corp. v. Schine Chain Theatres, Inc., 278 F.2d 798,
801 (2d Cir. 1960)).
While definitions may vary slightly from circuit to circuit,
the federal courts are uniform in their characterization of “fraud
upon the court” as being “typically confined to the most egregious
cases, such as bribery of a judge or juror, or improper influence
exerted on the court by an attorney, in which the integrity of the
impinged.” Broyhill Furniture Indus., Inc. v. Craftmaster, 12 F.3d
1080, 1085-86 (Fed. Cir. 1993) (quoting Great Coastal Express, Inc.
v. International Bhd. of Teamsters, 675 F.2d 1349, 1356 (4th Cir.
1982), cert. denied, 459 U.S. 1128 (1983); Gleason v. Jandrucko,
860 F.2d 556, 559 (2d Cir. 1988); Cleveland Demolition Co., Inc. v.
Azcon Scrap Corp., 827 F.2d 984, 986 (4th Cir. 1987); Alexander v.
Robertson, 882 F.2d 421, 424 (9th Cir. 1989); other citations
omitted). Petitioner’s inflammatory rhetoric aside, his allegations
of “fraud upon the court” amount to nothing more than indignation
about, and vehement and disagreement with, each and every ruling by
every judge of the Western District of New York to have passed upon
attorney exerted improper influence on the undersigned, District
Judge Arcara, or Magistrate Judge Bianchini. Nor has Petitioner
pleaded facts showing that the integrity of the judges of this
Court was comprised, or that the judges’ abilities to function
strength, Petitioner’s personal belief that the Court’s decisions
have been wrong does not call into question the integrity of the
judges of this District or their ability to remain fair, neutral,
and impartial. See Pena v. Bellnier, No. 09 Civ. 8834(LAP), 2012 WL
45588511, at *1 (S.D.N.Y. Sept. 29, 2012) (rejecting Rule 60(b)
motion where “Petitioner’s attacks on the Court’s integrity amount
to nothing more than arguing that Judge Ellis and Judge Holwell
‘got it wrong’ on the merits of his claims”).
The case of Steele v. Motz, Civil Action No. 1:09CV792, 2009
WL 8131857, at *3 (D. Md. Nov. 19, 2009), is instructive. There,
the plaintiff brought suit against a federal district judge,
seeking a declaratory judgment that the judge committed “fraud on
the court” by ruling against the plaintiff’s company in a previous
civil lawsuit. The plaintiff in Steele did “not alleg[e] that
Judge Motz took a bribe, but that the type of fraud on the court
Judge Motz committed was his intentional acts to disallow the
arbitration award.” Id. at *6 (citation to record omitted). The
complaint was simply “a recitation of facts in the underlying
litigation, which was ultimately affirmed by the Fourth Circuit.”
Id. As was the case in Steele, the circuit court of appeals in this
case dismissed Petitioner’s appeals of the denials of his federal
[Court]’s rulings, and may in fact resent the [Court] for such
rulings, this is not evidence of ‘fraud on the court.’” Steele v.
Motz, 2009 WL 8131857, at *3
(collecting cases). The record
plainly does not substantiate the existence of a “fraud upon the
Finally, the Court examines Petitioner’s allegations in light
of clause (6) of Rule 60(b), which provides that relief may be
granted for “any other reason justifying relief from the operation
of the judgment.” FED. R. CIV. P. 60(b)(6). This catchall provision
is properly invoked only where “Rules 60(b)(1) through (5) do not
apply, and if extraordinary circumstances are present or the
failure to grant relief would work an extreme hardship on the
movant.” ISC Holding AG v. Nobel Biocare Finance AG, 688 F.3d 98,
109 (2d Cir. 2012) (citing Matter of Emergency Beacon Corp., 666
F.2d 754, 759 (2d Cir. 1981) (citations omitted; footnote omitted).
Petitioner’s reiteration of the same allegations of error and
extreme hardship for purposes of invoking Rule 60(b)(6). See Green,
374 F. App’x at 88-89 (citation omitted) (“Mere disagreement with
extraordinary circumstances or extreme hardship.”); see also United
Airlines, Inc. v. Brien, 588 F.3d 158, 177 (2d Cir. 2009) (“The
agency’s grounds for the Rule 60(b)(6) motion—which essentially
sufficiently extraordinary to justify reopening a closed case . .
The Recusal Motions
Petitioner’s claims of bias and impartiality on the part of
Judge Bianchini, are both conclusory and based entirely on his
disagreement with the Court’s decisions. This is an insufficient
basis for recusal. See Liteky v. United States, 510 U.S. 540, 555
(1994) (“[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion.”); United States v. Ahmed,
788 F. Supp. 196, 205 (S.D.N.Y. 1992) (finding that defendant did
455(b)(1), where allegations of bias stemmed from an exchange
between court and defense counsel at contempt hearing; “the alleged
source of bias derive[d] from the performance of judicial duties,
and therefore, it [did] not spring from an extrajudicial source”)
(citing United States v. Grinnell Corp., 384 U.S. 563, 583 (1966)).
For the reasons discussed above, Petitioner’s Motions to
Vacate and to Recuse Dkt #45-1 (1:11-cv-00440-MAT); Dkt #112 (1:06cv-00842-MAT-VEB) are denied with prejudice.
has failed to make “a substantial showing of a denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines
to issue a certificate of appealability. See, e.g.,
New York State Div. of Parole, 209 F.3d 107, 111–113 (2d Cir.
2000). The Court also hereby certifies, pursuant to 28 U.S .C.
§ 1915(a)(3), that any appeal from this order would not be taken in
good faith, and therefore the Court denies Petitioner leave to
appeal in forma pauperis. Coppedge v. United States, 369 U.S. 438,
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
Rochester, New York
September 29, 2014
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