Cordero v. Miller
Filing
43
DECISION AND ORDER denying 37 Motion for Reconsideration filed by Cirito Cordero, denying a certificate of appealability, and denying leave to proceed in forma pauperis on appeal. Signed by Hon. Michael A. Telesca on 10/5/2018. A copy of this Decision and Order was sent to Petitioner on this date by USPS first-class mail. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________
CIRITO CORDERO,
DECISION AND ORDER
No. 1:15-cv-00383(JJM)(MAT)
Petitioner,
-vsCHRISTOPHER MILLER,
Respondent.
________________________________
I.
Introduction
This is habeas corpus proceeding pursuant to 28 U.S.C. § 2254
commenced by pro se petitioner Cirito Cordero (“Petitioner”). On
July 9, 2018, the Court adopted the Report and Recommendation of
Magistrate
Judge
Jeremiah
M.
McCarthy
recommending
that
Petitioner’s request for a writ of habeas corpus be denied, and
that no certificate of appealability should issue. The Court also
denied
Petitioner’s
requests
for
a
stay,
the
appointment
of
counsel, the expansion of the record, and for discovery. Petitioner
has now filed a pleading styled as an “Application for Reargument,
Amendment, Reconsideration and Renewal Pursuant to Rules 50(b),
52(b), 59(a) and 59(e) of the Federal Rules of Civil Procedure,
and/or For Local Rule 4l(b) Notice Relative to My Objections”
(hereinafter, “motion for reconsideration”). Respondent has filed
an affidavit in opposition, and Petitioner has filed a reply. For
the reasons discussed below, the motion for reconsideration is
denied.
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II.
Standard of Review
As an initial matter, the Court addresses the proper standard
of review for Petitioner’s motion. Although he cites Rules 50(b)
and 52(b) of the Federal Rules of Civil Procedure, the Court finds
that neither of these rules are applicable to this matter. Rule
50(b) is inapplicable, as there has been no jury trial in this
habeas proceeding. Rule 52(b) likewise is inapplicable because this
matter was not tried on the facts without a jury or with an
advisory jury in federal court.
Petitioner also cites Rules 59(a)
and 59(c) of the Federal Rules of Civil Procedure. Rule 59(a) does
not apply because, again, there was no trial in this federal habeas
proceeding. Rule 59(c) also does not apply because it pertains to
a motion for a new trial under Rule 59(a), which, as previously
stated, is inapplicable here.
However, the Court finds that Rule 59(e), which deals with
motions to alter or amend the judgment, has applicability here.
Petitioner, pursuant to the prison mailbox rule, filed his motion
on
August
3,
2018,
within
Rule
59(e)’s
28-day
time
period.1
Therefore, the Court will evaluate Petitioner’s motion pursuant to
Rule 59(e).
“There are four basic grounds upon which a Rule 59(e) motion
may be granted. First, the movant may demonstrate that the motion
1
Judgment dismissing the petition was entered on July 10, 2018. The 28-day
period for filing a Rule 59(e) motion ended on Tuesday, August 7, 2018.
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is necessary to correct manifest errors of law or fact upon which
the judgment is based. . . . Second, the motion may be granted so
that the moving party may present newly discovered or previously
unavailable
evidence.
Third,
the
motion
will
be
granted
if
necessary to prevent manifest injustice. . . . Fourth, a Rule 59(e)
motion may be justified by an intervening change in controlling
law.”
11
FED.
PRAC.
&
PROC.
CIV.,
Grounds
for
Amendment
or
Alteration of Judgment, § 2810.1 (3d ed.) (footnotes omitted). The
standard for granting a motion for reconsideration is “strict[,]”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995), and
such a motion “should not be granted where the moving party seeks
solely to relitigate an issue already decided[.]” Id.
III. Discussion
Petitioner contends that the Court “summarily adopted” the
report and recommendation without giving him an opportunity to file
the objections “which the previous orders of this Court implicitly
agreed could only be filed after the Stay and Abeyance application
had been resolved.” Motion for Reconsideration (“Mot.”) (Docket No.
37), ¶ 22. Petitioner does not point to any specific orders, let
alone
any
language
“implicitly”
in
stating
such
that
orders,
which
objections
to
could
the
be
read
report
as
and
recommendation could only be filed after his stay motion had been
resolved. This contention is unfounded on the present record.
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Here, Judge McCarthy’s report and recommendation was filed on
May 4, 2017. Over the next year, Petitioner requested and received
four (4) extensions of time to file objections to the report and
recommendation, the last of which required him to file objections
by December
14, 2017. Instead of filing objections, on December 14, 2017,
Petitioner filed an amended petition, a motion for a stay, and a
motion to appoint counsel (Docket Nos. 28). On February 12, 2018,
he filed a motion for an extension of time to file a supplemental
stay and abeyance motion (Docket No. 29). The Court (Arcara, D.J.)
granted (Docket No. 30) Petitioner’s request for an extension of
time up to and including April 15, 2018, in which to file his
supplemental stay and abeyance motion. Petitioner then filed a
motion for an extension of time to file a supplemental stay and
abeyance motion, which this Court granted on April 16, 2018 (Docket
No. 34). Petitioner was given until May 31, 2018, to file his
supplemental stay application.2
Neither a supplemental stay application nor objections to the
report and recommendations were filed before July 9, 2018, the date
of this Court’s decision and order. Petitioner cites no authority
for his assertion that, in its July 9, 2018 decision and order
(Docket No. 35), “the Court failed to give [him] the required
2
Respondent indicates (Docket No. 39) that Petitioner filed four motions
between April 16, 2018, and May 31, 2018; however, there are no motions on the
docket during that time period.
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notice, under
Local
Rule
41(b),
to
have
[his]
objections to
Magistrate McCarthy’s Report and Recommendation within 30 days of
the denial of [his] stay and abeyance application.”
Mot. ¶ 22.
Petitioner was given ample extensions of time, spanning over a
year-long
period,
recommendations,
extension
of
to
but
time
file
he
to
did
file
objections
not
do
to
so.
objections
the
And,
had
report
after
expired,
and
his
he
last
never
requested an additional extension of time. His assertion in his
stay motion that he required a stay in order to file meaningful
objections did not suffice and, in any event, was legally and
factually without basis.
IV.
Conclusion
For
the
foregoing
reasons,
Petitioner’s
“Application
for
Reargument, Amendment, Reconsideration and Renewal Pursuant to
Rules 50(b), 52(b), 59(a) and 59(e) of the Federal Rules of Civil
Procedure, and/or For Local Rule 4l(b) Notice Relative to My
Objections” is denied. Because Petitioner has failed to make a
substantial showing of the denial of a constitutional right, 28
U.S.C. § 2253(c)(2), no certificate of appealability shall issue.
The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any
appeal from this order would not be taken in good faith. Therefore,
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leave to proceed in forma pauperis on appeal is denied.
IT IS SO ORDERED.
s/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
October
, 2018
Rochester, New York
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