Mills v. Lempke et al
-CLERK TO FOLLOW UP-DECISION and ORDER denying with prejudice 56 Petitioner's Motion to Vacate ; denying with prejudice 57 Petitioner's Motion for Sanctions; denying with prejudice 64 Petitioner's Motion for Issuance of Subpoe nas. The Court 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 in forma pauperis status is denied for purpose of an appeal. Signed by Hon. Michael A. Telesca on 10/11/16. The Clerk of the Court is requested to mail a copy of this Decision and Order to the pro se petitioner. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsJOHN B. LEMPKE,
Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
and later filed an Amended Petition. Petitioner challenged the
following a judgment entered on December 16, 2004, after a jury
verdict in New York State, Genesee County Court, convicting him of
Attempted Murder in the First Degree (New York Penal Law (“P.L.”)
§§ 110.00/125.27(1)(a)(i)), Attempted Assault in the First Degree
(P.L. §§ 110.00/120.10(1)), Reckless Endangerment in the First
Degree (P.L. § 120.25), two counts of Criminal Possession of a
Possession of Marijuana in the Third Degree (P.L. § 221.20).
Petitioner was sentenced to aggregate concurrent sentences of 20
years to life in prison. The conviction was unanimously affirmed by
the Appellate Division, and leave to appeal to the New York Court
of Appeals was denied.
Because the Genesee County Court Judge Robert Noonan did not
sentence petitioner to a period of post-release supervision (“PRS”)
in addition to his 15-year determinate sentence for his attempted
assault conviction as required by P.L. § 70.45, on January 31,
2011, Judge Noonan resentenced Petitioner, pursuant to P.L. §
70.85, by reimposing the original prison sentence without any term
By Decision and Order dated February 4, 2013 (Dkt #38), this
Court dismissed the Amended Petition and declined to issue a
certificate of appealability. Judgment (Dkt #39) in Respondent’s
favor was entered on February 5, 2013. On May 31, 2013, the Second
appealability, and on October 22, 2013, the Second Circuit denied
Petitioner’s motion for rehearing en banc. On October 7, 2013, the
United States Supreme Court denied Petitioner’s petition for a writ
In pro se papers dated October 15, 2013, and October 26, 2013,
Petitioner moved to vacate this Court’s February 4, 2013 Judgment
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure
(“Rule 60(b)”). This Court denied the motion in a Decision and
Order (Dkt #50) filed on September 29, 2014, and the Second Circuit
declined to issue a certificate of appealability on December 22,
2014 (Dkt #53).
In pro se papers dated July 20, 2016, Petitioner moved to
vacate (Dkt #56) the February 4, 2013 Decision and Order dismissing
his Amended Petition pursuant to Federal Rule of Civil Procedure
60(b) (“Rule 60(b)”).
Petitioner also moved for sanctions (Dkt
Respondent filed a Declaration (Dkt #58) in opposition to the
Motion to Vacate and a Declaration (Dkt #59) in opposition to the
Motion for Sanctions. Petitioner filed Declarations (Dkt #62 & #63)
in reply to Respondent’s opposition papers, as well as a Motion for
Issuance of Subpoenas (Dkt #64). Respondent did not respond to the
Motion for Issuance of Subpoenas.
For the reasons discussed below, all three motions are denied.
MOTION TO VACATE
Pursuant to Rule 60(b), “[o]n motion and just terms, a court
may relieve a party or its legal representative from a final
judgment, order, or proceeding” for any of the following reasons:
(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
extrinsic), misrepresentation, or misconduct by
(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). Petitioner specifies subsections (1) through
(6) of Rule 60(b) as the grounds for his motion.
The gravamen of Petitioner’s Motion to Vacate is that Judge
Noonan, who presided over his criminal trial in 2004, committed
fraud when he allegedly lied in a Decision and Order dated June 2,
According to Petitioner, the lie concerned the degree of kinship
between Judge Noonan and Assistant District Attorneys Robert and
responsible for prosecuting Petitioner’s criminal case. In the
Decision and Order at issue, Judge Noonan stated that the Zickl
Brothers were his first cousins, once removed. As proof of Judge
Noonan’s alleged lie, Petitioner has submitted a newspaper article
father-in-law of the Zickl Brothers’ father. Thus, based on the
article, Petitioner asserts, the Zickl Brothers are actually Judge
According to Petitioner, this establishes an ethical violation by
Judge Noonan, whom he claims should have recused himself based on
his familial relationship with the Zickl Brothers.
Petitioner cannot avail himself of subsections (1), (2), or
(3) of Rule 60(b) because his Motion to Vacate was not made within
one year after the Judgment. See 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.”).
Rule 60(b)(4) which, applies when the judgment is void, cannot
be invoked here. A judgment is void “only if the court that
rendered it lacked jurisdiction of the subject matter, or of the
parties, or if it acted in a manner inconsistent with due process
of law.” Grace v. Bank Leumi Trust Co., 443 F.3d 180, 194 (2d Cir.
2006). The newspaper article discussing the familial relationship
between Judge Noonan and the Zickl Brothers does not have the
effect of voiding this Court’s Judgment.
Petitioner cannot rely on Rule 60(b)(5), which allows vacatur
if 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). The Court’s
Judgment dismissing the Amended Petition is not subject to being
satisfied, released or discharged. Likewise, it was not based on an
earlier judgment that has been reversed or vacated. Finally, it did
not leave open future adjudication of any issues regarding the
rights of the parties. See Tapper v. Hearn, No. 15-2249-CV,
F.3d ___, 2016 WL 4204794, at *4 (2d Cir. Aug. 10, 2016) (“The fact
that the district court's prior dismissal was not executory and did
not leave open future adjudication of any issues regarding the
rights of the parties now at issue here and before the district
court is fatal to Petitioners’ claim under [Rule 60(b)(5)].”).
Rule 60(b)(6) provides that a court may relieve a party from
a final judgment for “any other reason that justifies relief.” FED.
R. CIV. P. 60(b)(6). Significantly, “Rule 60(b)(6) applies only
‘when the asserted grounds for relief are not recognized in clauses
(1)-(5) of the Rule’ and ‘there are extraordinary circumstances
justifying relief.’” Tapper, 2016 WL 4204794, at *4 (quoting
Nemaizer v. Baker, 793 F.2d 58, 63 (2d Cir. 1986); emphasis
supplied). Even assuming that Petitioner is correct about the
actual relationship between Judge Noonan and the Zickl Brothers,
further that their relationship was relevant to the
Judgment in this action, any resulting conflict of interest falls
far short of the “extraordinary circumstances” necessary to invoke
Rule 60(b)(6). See Moskowitz v. Coscette, 51 F. App’x 37 (2d Cir.
2002) (any tension that may have existed within attorney’s dual
representation of police chief and town in police officer’s action
alleging retaliation in violation of First Amendment did not rise
to level of “extraordinary circumstance” warranting relief from
final judgment in favor of officer, even if attorney failed to
highlight evidence that police commission had instructed chief to
build a case against officer, where attorney did not take position,
In short, Petitioner has not demonstrated, nor can he, that
“extraordinary circumstances” exist so as to justify reopening the
“extraordinary circumstances” are plainly absent in this case,
where Petitioner has been permitted to argue these meritless
kinship claims repeatedly, in both State and Federal court.
MOTION FOR SANCTIONS
Rule 11 requires that “[e]very pleading, written motion, and
other paper must be signed by at least one attorney of record in
the attorney’s name--or by a party personally if the party is
unrepresented[.]” FED. R. CIV. P. 11(a). By affixing his signature
to a pleading, the pro se litigant or the attorney certifies that
to the best of his knowledge, information, and belief, formed after
an inquiry reasonable under the circumstances, that the pleading
(1) is not being presented for any improper purpose, such
as to harass or to cause unnecessary delay or needless
increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions
therein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law;
(3) the allegations and other factual contentions have
evidentiary support or, if specifically so identified,
are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on
the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.
FED. R. CIV. P. 11(b); see also Business Guides, Inc. v. Chromatic
Communications Enterprises, Inc., 498 U.S. 533, 542 (1991) (“The
signature ‘certifies to the court that the signer has read the
document, has conducted a reasonable inquiry into the facts and the
law and is satisfied that the document is well grounded in both,
and is acting without any improper motive.’”).
Petitioner asserts entitlement to sanctions pursuant to Rule
11 on the basis that Judge Noonan allegedly committed “fraud,
perjury, and [made] misstatements meant to mislead” the Court. The
allegedly untruthful statements by Judge Noonan about the degree of
kinship between himself and the Zickl Brothers, discussed above,
form the basis of Petitioner’s Rule 11 motion.
Judge Noonan has not filed any pleadings in this Court. Rule
11 thus has no applicability whatsoever to the instant proceeding.
Petitioner is cautioned that “the filing of a motion for
sanctions is itself subject to the requirements of [Rule 11] and
can lead to sanctions.” FED. R. CIV. P. 11 advisory committee’s note
(1993 Amendments) (quoted in Safe-Strap Co. v. Koala Corp., 270 F.
Supp. 2d 407, 421 (S.D.N.Y. 2003)). Petitioner’s present motions,
which are also asserted verbatim in nine other cases he has filed
in this Court, are precisely the type of “abusive litigation
tactics,” Gaines v. Gaston, No. 92 CIV. 0643(DNE), 1998 WL 574380,
at *3 (S.D.N.Y. Sept. 8, 1998), that Rule 11 was intended to deter.
MOTION FOR ISSUANCE OF SUBPOENAS
Petitioner seeks an order mandating Judge Noonan to appear
before the Court and state under oath how he is related to the
Petitioner also seeks an order mandating that the journalist who
wrote the newspaper article discussed above be required to appear
and testify before the Court. Unsurprisingly, Petitioner cites no
legal authority in support of these requests, which are entirely
frivolous and warrant no further discussion.
For the reasons discussed above, Petitioner’s Motion to Vacate
the Judgment, Motion for Sanctions, and Motion for Issuance of
Subpoenas are denied with prejudice. The Court 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 in forma pauperis status is
denied for purpose of an appeal. See Coppedge v. United States, 369
U.S. 438, 444-45 (1962).
S/ Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
October 11, 2016
Rochester, New York.
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