Toliver v. Artus
Filing
35
ORDER denying 34 Motion for Declaratory Judgment and denying 33 Motion to Vacate with prejudice. Signed by Hon. Michael A. Telesca on 8/25/14. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
SAMUEL R. TOLIVER,
DECISION AND ORDER
No. 1:11-CV-1051(MAT)
Petitioner,
-vsDALE ARTUS, Superintendent
WENDE CORRECTIONAL FACILITY,
Respondent.
________________________________
I.
Introduction
On January 3, 2013, this Court issued a Decision and Order
[#18] denied the pro se application for a writ of habeas corpus
pursuant
to
28
U.S.C.
§
2254
sought
by
Samuel
R.
Toliver
(“Petitioner”). Judgment [Dkt #19] was entered on January 4, 2013,
and Petitioner filed a notice of appeal [Dkt #20] with the Second
Circuit. On July 24, 2013, a Second Circuit mandate [Dkt #25] was
filed in this Court denying Petitioner’s request for a certificate
of appealability and dismissing his appeal. On or about January 30,
2014, Petitioner filed a motion to vacate the judgment [Dkt #28],
which this Court denied [Dkt #29]. Petitioner filed a notice of
appeal [Dkt #30] as to that motion. On August 6, 2014, Petitioner
filed a Motion to Vacate Judgment – Lack of Jurisdiction of Person
(F.R.C.P. Rule 60(b)(4)) [Dkt #33] and a Motion for Declaratory
Judgment [Dkt #34].
For the reasons discussed below, both motions are dismissed.
II.
Motion to Vacate
Rule 60(b) of the Federal Rules of Civil Procedure, properly
applied, “strikes a balance between serving the ends of justice and
preserving the finality of judgments.” Nemaizer v. Baker, 793 F.3d
58, 61 (2d Cir. 1986) (citations omitted). The moving party bears
the burden of proof and must convince the reviewing court that
“exceptional circumstances” exist for vacating the judgment. United
States v. International Bhd. of Teamsters, 247 F.3d 370, 391
(2d Cir. 2001). All Rule 60(b) motions must “be made within a
reasonable
time,”
FED.
R.
CIV.
P.
60(b),
and
motions
under
Rule 60(b)(1), (2) and (3) must be made within one year after the
judgment, id., 60(c). The Second Circuit also requires that the
evidence in support of the motion be “highly convincing,” Koticky
v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987)
(quotation omitted); that the movant show good cause for the
failure to act sooner, id. (citations omitted); and that no undue
hardship
be
imposed
on
the
opposing
parties,
id.
(citation
omitted).
In habeas corpus proceedings, Rule 60(b) is further limited by
the restrictions placed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) on the filing of second or successive
applications under section 2254. See Gonzalez, 545 U.S. at 530–33.
A post-judgment motion may only be treated as a proper request for
relief under Rule 60(b) if it “relates to the integrity of the
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federal habeas proceeding, not to the integrity of the criminal
trial.” Harris v. United States, 367 F.3d 74, 80 (2d Cir. 2004).
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:
(1) mistake,
neglect;
inadvertence,
surprise,
or
excusable
(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
opposing party;
or
an
(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 subsection (4) as the
basis for his motion. “Pursuant to that rule, a movant may attack
a judgment for lack of jurisdiction over his person at any time,
since a judgment rendered without jurisdiction over the person
(i.e., because of insufficient service of process) is void.”
Williams v. United States, Nos. 401CV089, 499CR241–01, 2009 WL
411511, at *1 (S.D. Ga. Feb. 18, 2009) (citing Varnes v. Local 91,
Glass Bottle Blowers Ass’n, 674 F.2d 1365, 1368 (11th Cir. 1982)).
-3-
In particular, according to Petitioner, “the Summons and
Complaint were never in fact served upon [ ] the plaintiff either
personally or in any manner authorized by Rule 4 of the Federal
Rules of Civil Procedure.” Petitioner’s Motion to Vacate at 1 [#33]
He accuses “the [P]eople of the State of New York” of being “in
violation
of
Rule
17(a)(1)
[which]
states
in
Designation
in
General. An action must be prosecuted in the name of the real party
in interest.”
Id. Petitioner concludes that his “conviction is
void[.]” Id. at 2.
This
Court
has
jurisdiction
over
Petitioner’s
§
2254
petitioner challenging his New York state judgment of conviction.
See McCool v. New York State, 29 F. Supp.2d 151, 158 (W.D.N.Y.
1998) (“[A] federal habeas claim attacking a state conviction is
properly brought in any district court of the state whose sentence
is challenged.”) (citing Braden v. 30th Judicial Circuit Court of
Kentucky,
410 U.S.
484,
498–99
(1973)).
It
defies
logic
for
Petitioner to claim lack of personal jurisdiction when he is the
party who invoked the Court’s jurisdiction in the first place by
filing his habeas petition.
Moreover, service of the petition upon Petitioner was not a
prerequisite to this Court’s jurisdiction over his person. To
effect service, upon a filing party, of the same document that the
party has filed “would be needlessly duplicative and a waste of
resources.”
Williams,
2009
WL
-4-
411511,
at
*1.
Accordingly,
Rule 3(b) of the Rules Governing § 2254 Proceedings requires only
that the court clerk, upon receipt of the petition, file it and
enter it on the docket.
Then, under Rule 4 of the Rules Governing
§ 2254 Proceedings, the clerk “must serve a copy of the petition
and any order on the respondent and on the attorney general or
other appropriate officer of the state involved.”
There is no
requirement, in the Rules or otherwise, that the petitioning party
be served with a copy of his own habeas petition.
In his memorandum of law, Petitioner invokes various unrelated
laws and statutes, such as maritime law; the Emergency Banking Act;
and Dred Scott v. Sandford, 60 U.S. 393 (1856), superseded by
constitutional
amendment
(1868).
The
theme
of
Petitioner’s
allegations is that the courts do not have personal jurisdiction
over him because he is not a “subject” of the United States
Government, and therefore all convictions and judgments against him
are void. These arguments are frivolous and lacking in any legal or
factual basis.
III. Motion for Declaratory Judgment
In his motion for declaratory judgment pursuant to 28 U.S.C.
§§ 2201, 2201, Petitioner repeats his allegations that the courts
lack jurisdiction over him. He accuses the “attorneys in the office
of the State of New York also United States attorney for the
Western District of New York [of] having evaded core constitutional
questions, having failed to address the character and jurisdiction
-5-
of the Internal Revenue Service, application of internal Revenue
Code Taxing authority, etc., in all forums, but instead having
relied on accommodation of judicial officers in the United States
District Courts. . .” Petitioner’s Motion for Declaratory Judgment
at 1-2. The relief he seeks is $25 million “or order the release of
plaintiff from the New York State Department of Correction and
Community Supervision, or REMAND of the case to the Buffalo County
Supreme Court of the Western District of New York to prove if a
contract exist[s] between plaintiff, the Courts, and the attorneys
office where the trial causes were conducted in non-compliances
[sic] with the provisions of Article III.” Id.
“The Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, .
. . provides that a court ‘may declare the rights . . . of any
interested party,’ and contemplates that district courts will
exercise
discretion
in
determining
whether
to
entertain
such
actions,” State Auto Ins. Companies v. Summy, 234 F.3d 131, 133
(3d Cir. 2000) (internal citations omitted). This statute has been
characterized as “an enabling Act, which confers a discretion on
the courts rather than an absolute right upon the litigant.”
Wilton v. Seven Falls Co., 515 U.S. 277, 287 (1995) (internal
quotations omitted).
Assuming arguendo that Petitioner has stated an actual case or
controversy as required by 28 U.S.C. § 2201(a), thereby giving this
Court has jurisdiction over his request for declaratory judgment,
-6-
the Court finds that it must decline to entertain the request.
Petitioner’s argument that he only can be prosecuted for crimes in
New York state courts if a contractual relationship exists between
him and the judiciary presents an “indisputably meritless legal
theory”
which
is
contentions.”
IV.
“predicated
on
clearly
baseless
factual
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Conclusion
For the foregoing reasons, Petitioner’s Motion to Vacate [Dkt
#33] and Motion for Declaratory Judgment [Dkt #34] are both denied
with prejudice. The Court hereby certifies that any appeal from
this Decision and Order would not be taken in good faith, and
accordingly denies Petitioner leave to appeal in forma pauperis.
The
Court
also
finds
that
Petitioner
has
failed
to
make
a
substantial showing of the denial of a constitutional right, see,
28
U.S.C.
§
2253(c)(2),
and
therefore
declines
to
issue
certificate of appealability.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
August 25, 2014
Rochester, New York
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a
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