Mills v. Lempke et al
ORDER denying 70 Motion. Copy of Order sent by first class mail to Petitioner.. Signed by Hon. Michael A. Telesca on 5/5/17. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsJOHN B. LEMPKE,
-vsSuperintendent T. POOLE,
Presently before the Court is pro se petitioner Richard Mills’
third motion to vacate the Court’s judgment entered on February 5,
2013, in No. 1:11-cv-00440-MAT and the Court’s judgment entered on
July 1, 2008, in No. 1:06-cv-00842-MAT. Respondents, through their
attorneys, the Office of the New York State Attorney General, have
opposed the motions. Petitioner has filed replies in both cases.
background of Petitioner’s criminal proceedings in state court, and
his habeas and other civil proceedings in this Court. For the
reasons discussed below, vacatur of the judgments in the abovecaptioned cases is 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.
Petitioner cannot avail himself of subsections (1), (2), or
(3) of Rule 60(b) because the motions to vacate were not made
within one year after entry of the pertinent judgments. 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
Petitioner asserts that the “fact Robert Edward Noonan Jr.,
got caught using a fake name might now call into Rule 60(b[)], 4 &
5), and Due Process.” Petitioner is mistaken. Rule 60(b)(4) applies
when the judgment is void. 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). Even assuming the truth of Petitioner’s accusation,
it does not provide a basis for concluding that the Court’s
judgment is void. Moreover, Petitioner has not pointed to any legal
inapplicable here, as this Court previously has held. The judgments
satisfied, released or discharged. Likewise, neither judgment was
based on an earlier judgment that has been reversed or vacated.
Finally, the judgments did not leave open future adjudication of
any issues regarding the rights of the parties. See Tapper v.
Hearn, 833 F.3d 166, 172 (2d Cir. 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, 833 F.3d at 172 (quoting Nemaizer v.
Baker, 793 F.2d 58, 63 (2d Cir. 1986); emphasis supplied).
Petitioner asserts that he “is entitled to relief under
Marrero Pichardo v. Ashcroft, 374 F.3d 46 (2d Cir. 2004); Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988); and Buck
v. Davis, 137 S. Ct. 759 (2017). Petitioner contends that he “now
has demonstrated such extraordinary circumstances which far surpass
the above cases.” Again, Petitioner is mistaken.
present, a court may consider a wide range of factors. These may
include, in an appropriate case, “the risk of injustice to the
parties” and “the risk of undermining the public’s confidence in
the judicial process.” Buck, 137 S. Ct. at 778 (citing Liljeberg,
486 U.S. at 863–64).
In Marrero Pichardo, the Second Circuit found that if the
denial of the habeas petition were not reopened, a “manifest
injustice will occur because the change in law goes to the very
basis of [the petitioner]’s deportation.” 374 F.3d at 56. According
to the Second Circuit, it was “inexplicable” that neither party
noticed a “significant fact” that undermined the petitioner’s
deportation order, and the district court’s failure to reconsider
the order of deportation once it was made aware of such an
lawyering, amount[ed] to an abuse of discretion.” Id. at 56. Prior
to even considering the motion, the Second Circuit had to employ a
narrow exception to nonexhaustion, and it found that Marrero
Pichardo’s case “pose[d] such dire consequences” as to warrant
consideration of his claims. Id. at 54. In particular, Marrero
Pichardo had resided in this country for over 26 years with his
wife, daughter, and extended family. Cumulatively, these unique
reconsideration of the district court’s judgment.
Like Marrero Pichardo, Buck is another fact-bound decision
that is entirely inapposite to Petitioner’s case. In Buck, the
Supreme Court found that the district court abused its discretion
in denying a habeas petitioner’s Rule 60(b)(6) motion to reopen the
assistance of trial counsel. During the penalty phase of Buck’s
capital murder case, defense counsel presented expert testimony
that Buck was statistically more likely to act violently in the
future because he was black.
Buck, 137 S. Ct. at 776-77. The
circumstances raising the possibility that Buck had been sentenced
to death based on his race. Id. at 778. The Supreme Court noted
that the “extraordinary nature” of Buck’s was “confirmed by what
testimony” in other cases. Id. The Texas Attorney General sua
sponte conducted an audit and vacated the judgments in five other
capital cases in which evidence, similar to that elicited by Buck’s
defense counsel, had been presented. See id. at 778-79. As the
Supreme Court observed, “[t]hese were remarkable steps. It is not
every day that a State seeks to vacate the sentences of five
defendants found guilty of capital murder.” Id. at 779.
disqualification of federal judges. The judge there was a trustee
of a university who had an interest in a proceeding before him, and
the statute required him to disqualify himself from presiding over
that case. Petitioner has not demonstrated, nor can he, any acts or
omissions by Judge Noonan that required disqualification, such as
was the case in Liljeberg. Morever, as this Court previously held,
relationship between Genesee County Court Judge Robert Noonan,
Randolph Zickl, Robert Zickl, and William Zickl, and assuming
further that their relationship was relevant to the judgments in
these actions, 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)
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,
For the foregoing reasons, Petitioner’s motion to vacate the
judgment in 1:11-cv-00440 (Dkt #70) and motion to vacate the
judgment 1:06-cv-00842 (Dkt #135) are denied. Petitioner has failed
to make a substantial showing of the denial of a constitutional
§ 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,
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
May 5, 2017
Rochester, New York.
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