Toliver v. Artus
Filing
29
ORDER denying 28 Petitioner's Motion to Vacate. Signed by Hon. Michael A. Telesca on 3/19/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SAMUEL R. TOLIVER,
DECISION AND ORDER
No. 11-CV-1051MAT
Petitioner,
-vsDALE ARTUS, Superintendent
WENDE CORRECTIONAL FACILITY
Respondent.
________________________________
I.
Introduction
Petitioner Samuel R. Toliver (“Petitioner” or “Toliver”) was
convicted, upon a plea of guilty, of Assault in the First Degree
(N.Y. Penal Law § 120.10[4]), and sentenced, as a persistent second
felony offender, to fifteen years imprisonment.
Order
dated
January
3,
2013,
this
Court
By Decision and
denied
Petitioner’s
application under 28 U.S.C. § 2254 for a writ of habeas corpus
(Dkt. No. 28) (hereinafter “the habeas decision”), and judgment was
entered on January 4, 2013 (Dkt. No. 19).
Toliver appealed the
Court’s habeas decision, and the Second Circuit dismissed the
appeal in a Mandate issued on or about July 24, 2013 (Dkt. No. 25).
Petitioner now seeks reconsideration of the Court’s habeas
decision, pursuant to Fed. R. Civ. P. 60(b)(3), (6).
Dkt. No. 26.
For the reasons that follow, Petitioner’s motion is denied.
II.
The Motion is Untimely
Rule 60(b) allows a party to seek relief from a final judgment
for the following reasons: (1) mistake, inadvertence, surprise, or
excusable
neglect;
(2)
newly
discovered
evidence;
(3)
fraud;
(4) the judgment is void; or (5) the judgment has been satisfied.
Fed. R. Civ. P. 60(b)(1) - (5).
Subsection (6) allows a party to
move for “any other reason that justifies relief.”
Fed. R. Civ. P.
60(b)(6).
Under Rule 60©, the timeliness of a Rule 60(b) motion depends
upon which of 60(b)’s six distinct “[g]rounds for relief the movant
invokes; that section 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 judgment.”
Fed. R.
Civ. P. 60©.
Petitioner
filed
the
instant
motion
in
this
Court
on
January 14, 2014 (Dkt. No. 26),1 one year and ten days after entry
of the judgment from which he seeks relief, and thus beyond the one
year
period
applicable
to
most
motions
brought
under
60(b).
Because petitioner has also explicitly invoked subsection (6),
however, his
motion
appears
to
survive
the one-year
bar
and
requires the Court to consider, instead, whether the year and ten
1
Petitioner’s motion is dated January 14, 2014, and was docketed in this
Court on January 17, 2014 (Dkt. No. 26). Under the so-called “prisoner mailbox
rule,” a petitioner’s motion is deemed to have been filed on the date he gave it
to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988)
(holding that a pro se prisoner’s notice of appeal is deemed filed on the date
that the prisoner “deliver[s] it to the prison authorities for forwarding to the
court clerk,” rather than the date it was received by the court clerk). The
Court gives Petitioner the benefit of the earliest date, and deems it filed as
of January 14, 2014.
-2-
day period between judgment and motion is a “reasonable time”
within the meaning of 60©.
The Court finds that it is not.
Determining whether a motion to vacate has been filed within
a
reasonable
circumstances
time
of
the
“requires
case,
scrutin[izing]
and
balanc[ing]
finality with the reason for delay.”
the
the
particular
interests
in
Hom v. Brennan, 840 F. Supp.
2d 576, 581 (E.D.N.Y. 2011) (alterations in original) (internal
quotation
marks
and
citation
omitted);
see
also
Baldinger, 38 F.3d 1266, 1275 (2d Cir. 1994).
liberally
construes
Petitioner’s
statement
DeWeerth
v.
Here, the Court
that
he
“did
not
discover or know of the [alleged] fraud until on or about September
28, 2010 and December 12, 2012” as an attempt to explain the delay
in filing.
Dkt. No. 26 at 2.
This argument fails, however, given
that both of these dates far precede both the issuance of the
Court’s habeas decision and Toliver’s motion for reconsideration.
Accordingly, Petitioner’s motion, made more than one year
after this Court’s entry of judgment and six months after the
Second
Circuit
time-barred.
dismissed
his
appeal
on
July
24,
2013
is
Courts have found delays of one year and shorter to
be unreasonably long in the context of Rule 60(b) motions.
See,
e.g., Moses v. United States, 97 CIV 2833, 2002 U.S. Dist. LEXIS
16799, 2002 WL 31011864, at *2 (S.D.N.Y. Sept. 9, 2002) (listing
decisions that rejected 60(b) motions on timeliness grounds for
delays ranging from ten to twenty months) (citations omitted).
-3-
Accordingly, the Court finds that Petitioner’s motion is
untimely.
II.
Lack of Jurisdiction
Even if Plaintiff’s motion was timely, the Court nonetheless
lacks jurisdiction to address its merits.
Under the “law of the case doctrine,” “[w]hen an appellate
court has once decided an issue, the trial court, at a later stage
of the litigation, is under a duty to follow the appellate court’s
ruling on that issue.”
Brown v. City of Syracuse, 673 F.3d 141,
147 (2d Cir. 2012) (alteration in original) (internal quotation
marks
and
citation
omitted).
“This
‘mandate
rule
prevents
re-litigation in the district court not only of matters expressly
decided by the appellate court, but also precludes re-litigation of
issues impliedly resolved by the appellate court’s mandate,’” Id.
(quoting Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.
2010)), or “of issues that fall within the scope of the judgment
appealed from . . . but not raised,” ResQNet.com, Inc. v. Lansa,
Inc., 828 F. Supp. 2d 688, 696 (S.D.N.Y. 2011) (alteration in
original) (internal quotation marks and citations omitted); see
also Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 52 (2d
Cir. 1985) (“Our previous ruling was the law of the case, and the
district judge correctly found that it had no jurisdiction to
review an appellate court’s decision.” (citation omitted)).
-4-
Here, the issues in Petitioner’s motion for reconsideration,
as discussed in more detail below, have already been litigated by
virtue of the Second Circuit’s dismissal of his appeal of this
Court’s initial habeas decision. Accordingly, the issues raised in
Petitioner’s
motion
cannot
be
re-litigated
in
the
instant
proceeding.
III. The Merits of the Motion
However, even if Petitioner’s motion was timely and the Court
had jurisdiction to entertain said motion, the Court would find it
meritless.
A.
Rule 60(b)(3)
Rule 60(b)(3) allows a party to seek relief from a final
judgment for “fraud, . . . misrepresentation, or misconduct by an
opposing party[.]” Fed. R. Civ. P. 60(b)(3).
Toliver maintains
that “[t]he [habeas] judgment was obtained by fraudulent practice
on the part of the Respondent” insofar as Respondent misrepresented
that Petitioner did not properly file his pro se supplemental brief
in the Appellate Division, Fourth Department.
Dkt. No. 26 at ¶ 2.
He asserts that the habeas Court, in turn, “relied on [this]
misinformation” (Id. at ¶ 4) and incorrectly determined that one of
his ineffective assistance of counsel claims was unexhausted.2
2
That claim is as follows: “counsel failed to protect the most basic rights
of his client, failed to inform [Petitioner] of the consequences of [the] plea,
[and] threatened [Petitioner] [with] an extreme sentence if [Petitioner] did not
plead guilty.” Dkt. No. 1 at ¶ 12B.
-5-
In the habeas decision, the Court determined that, to the
extent the ineffective assistance of counsel claim at issue in the
instant proceeding was record-based, it was unexhausted because
Petitioner did not raise it on appeal.
See Dkt. No. 18 at p 14-15.
The Court made this determination based on the record on appeal
submitted by the Respondent, which did not include a supplemental
pro se appellate brief, but instead, included a letter from the
Appellate Division to Petitioner returning his pro se supplemental
brief because it did not comply with the court’s procedural filing
requirements.
See Dkt. No. 18 at p 3.
The Court notes that while
Petitioner had indicated in his habeas Reply that he had filed a
supplemental pro se appellate brief (Dkt. No. 15), he did not
provide documentation or otherwise explain, as he does now, that
his pro se appellate brief was timely filed with the Appellate
Division.
Further, the letter documentation he attached to his
habeas Reply from attorney Susan Ministero concerned his appeal
before the New York State Court of Appeals, and the Court addressed
this in its habeas decision (Dkt. No. 18 at n.2).
Dkt. No. 15.
In support of the instant motion, Petitioner now attaches a
letter
dated
August
1,
2013
from
the
Appellate
Division
to
Petitioner acknowledging that a pro se supplemental brief was
indeed filed in his case on September 10, 2010.
Appendix A.
brief.
Id.
Dkt. No. 26 at
He also attaches a copy of the pro se supplemental
Thus, it appears that the Court, relying on the record
-6-
submitted by Respondent, improperly determined that the ineffective
assistance of counsel claim at issue in the instant proceeding –to the extent it was record-based –- was unexhausted because it had
not been raised on direct appeal.
The Court, however, finds no
basis to disturb its determination that habeas relief is not
warranted with respect to the ineffective assistance of counsel
claim at issue based on this Court’s authority pursuant to 28
U.S.C. § 2254(b)(2) (see Dkt. No. 18 at n. 3), which substantively
reviewed
claim
under
it
determined
this
lacked
Strickland
merit.
See
Dkt.
v.
No.
Washingston,3
18
at
p
and
15-21.
Additionally, the Court notes that it also reviewed on the merits
and rejected
Petitioner’s
remaining
ineffective
assistance of
counsel claim (related to his guilty plea) and his related standalone claim that the trial court erred in denying his motion to
withdraw his guilty plea on the basis that the plea was unlawfully
induced or not made voluntarily.
Dkt. No. 18 at p 6-13, 15-21.
After performing these merit-based reviews, the Court determined
that habeas relief was not warranted with respect to each of these
claims, and the Court finds no reason to reconsider those findings
now.
B.
Rule 60(b)(6)
Plaintiff also asserts in the instant motion that the Court
erred “when it denied [his] ‘Mixed’ Habeas Corpus petition without
3
466 U.S. 668 (1984).
-7-
first allowing him to pursue his unexhausted claims in the State
Court.”
Dkt. No. 26 at ¶¶ 4-6.
Liberally construing Petitioner’s
pro se pleadings, the Court reads this portion of his motion as
arising under Rule 60(b)(6), which provides that this Court may
grant relief from a judgment or order for “any other reason that
justifies relief.”
Because subsection (6) is considered “a grand
reservoir of equitable power,” a proper case for Rule 60(b)(6)
relief is limited to one of extraordinary circumstances, or extreme
hardship.
Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012);
Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004).
The
Supreme Court has noted that the circumstances giving rise to Rule
60(b)(6)
relief
“will
rarely
occur
in
the
Gonzalez v. Crosby, 545 U.S. 524, 535 (2005).
habeas
context.”
Petitioner’s motion
fails to meet either of these standards.
Here, the Court initially issued a Decision and Order setting
forth the exhaustion requirement under 28 U.S.C. § 2254(b)(1)(A).
Dkt. No. 2.
In that Order, the Court alerted Petitioner that the
information he had submitted was inadequate to permit the Court to
evaluate whether he had met the exhaustion requirement with respect
to the claims asserted in his petition, and advised him that he had
four options with respect to any unexhausted claims, which were set
forth, in detail in the Decision and Order.
Dkt. No. 2 at 1-5.
Specifically, option three permitted Petitioner to ask the Court to
stay the petition and hold it in abeyance to allow him to present
-8-
his unexhausted claims in state court and then return to federal
court for his review of his petition once he had exhausted his
state remedies.
Id. at 3.
The Court instructed Petitioner to
advise the Court as to how he wished to proceed with respect to any
unexhausted claims, and sent him a Ҥ 2254 Exhaustion Response
Form” to do so.
Id. at 5.
The options language in the Decision
and Order is nearly identical to the language contained on the
response form provided by the Court.
Petitioner complied with this instruction and submitted the
exhaustion response form provided to him by the Court with an “X”
by option four, which states that:
Petitioner is procedurally barred from raising
some or all of his unexhausted claims.
In
order to permit the Court to properly evaluate
the status of [his] claims, petitioner hereby
provides
the
Court
with
the
following
information regarding why he may not still
raise the claims in state court. (a) why the
claim
cannot
be
raised
and
therefore
exhausted, (b) why petitioner failed to
exhaust that claim when it could have been
raised, and © describing what, if any
prejudice petitioner has experienced as a
result of the failure to exhaust his claim.
Dkt. No. 3 at 2-3.
Given Petitioner’s response, the Court ordered
Respondent to answer the petition.
Dkt. No. 7.
At no time
thereafter during the habeas proceeding did Petitioner seek to stay
the petition.
Petitioner now complains that the Court “erred” in denying him
the opportunity to stay the petition while he returned to state
-9-
court to exhaust the unexhausted claims in his petition.
argument fails for several reasons.
This
First, the docket sheet in
this case reflects that, on January 24, 2012, Petitioner clearly
elected not to seek to stay his habeas petition.
2-3.
Dkt. No. 3 at
Second, he never subsequently sought a stay and abeyance.
Finally, and perhaps most significantly, the Court reviewed and
rejected on the merits all of Petitioner’s habeas claims –- both
exhausted and unexhausted.
Accordingly, nothing in the pending
motion supports a finding of extraordinary circumstances, or that
leaving the prior decision undisturbed will result in extreme
hardship.
IV.
Conclusion
Petitioner’s motion, pursuant to Fed. R. Civ. P. 60(b)(3),
(6), is denied (Dkt. No. 26).
Because Petitioner has failed to
make “a substantial showing of a denial of a constitutional right,”
28 U.S.C. § 2253 (c)(2),
I decline to issue a certificate of
appealability. See, e.g., Lucidore v. 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 judgment would not be taken in good faith and
therefore denies leave to appeal as a poor person.
Coppedge v.
United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
-10-
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
s/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
March 19, 2014
Rochester, New York
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