Cordero v. Miller

Filing 53

DECISION AND ORDER denying 44 Petitioners Rule 60(b) Motion. 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, leave to proceed in forma pauperis on appeal is denied. Signed by Hon. Michael A. Telesca on 7/30/19. (Copy of this Decision and Order sent by first class mail to Petitioner.) (JMC)-CLERK TO FOLLOW UP-

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 a 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 (“R&R”) 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 accordingly dismissed the Petition. In addition, the
Court denied Petitioner’s requests for a stay, appointment of
counsel,

expansion

of

the

record,

and

permission

to

conduct

discovery.
Petitioner then 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”). The Court
issued a Decision and Order denying the motion for reconsideration
on October 5, 2018.

On October 18, 2018, Petitioner filed a pleading captioned as
a “Rule 60 Motion” (Docket No. 44), although he does not specify
under which subsection of Federal Rule of Civil Procedure 60(b)
(“Rule 60(b)”) his application is brought. Respondent filed an
Affidavit in opposition to the Rule 60(b) Motion, and Petitioner
filed a Reply.
While the Rule 60 Motion was pending, Petitioner filed a
motion for a certificate of appealability in the United States
Court of Appeals for the Second Circuit with regard to the Court’s
Decision and Order dismissing his Petition and the Court’s Decision
and Order denying his Motion for Reconsideration. In a Summary
Order dated May 23, 2019, the Second Circuit declined to issue a
certificate of appealability because Petitioner had not made a
substantial showing of the denial of a constitutional right.
For the reasons discussed below, the Rule 60(b) Motion is
denied.
II.

Standard of Review
Rule 60(b) allows a party to seek relief from a final judgment

on certain enumerated grounds: mistake, inadvertence, surprise, or
excusable neglect; newly discovered evidence; fraud; the judgment
is void; or the judgment has been satisfied. FED. R. CIV. P.
60(b)(1)-(5).

Rule

60(b)

also

has

a

so-called

“catch-all”

provision, subsection (6), which allows vacatur for “any other
reason that justifies relief. . . .” FED. R. CIV. P. 60(b)(6).

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A motion to reopen a habeas proceeding under Rule 60(b) is
permissible where it “relates to the integrity of the federal
habeas proceeding, not to the integrity of the state criminal
trial.” Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001);
see also Gonzalez v. Crosby, 545 U.S. 524, 538 (2005) (“We hold
that a Rule 60(b)(6) motion in a § 2254 case is not to be treated
as a successive habeas petition if it does not assert, or reassert,
claims of error in the movant’s state conviction.”). Rule 60(b) is
not a vehicle for rearguing the merits of the challenged decision.
See Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989)
(stating that a Rule 60(b) application “cannot serve as an attempt
to relitigate the merits”) (citations omitted).
III. Discussion
Petitioner’s complaints about this Court’s previous Decision
and Order may be summarized as follows: (1) the Court erred in
finding that Petitioner never requested an additional extension of
time to file objections to the R&R; (2) the Court erroneously
stated that he failed to cite any authority requiring the Court to
warn him that his extensions and failure to file objections could
result in dismissal of the Petition; and (3) the Court erred in
rejecting, as without legal or factual basis, his claim that he
could not file objections to the R&R because he had not yet
obtained copies of the victim’s medical records. Thus, Petitioner
is

attempting

to

reargue the

merits

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of

the

Court’s

previous

Decisions and Orders, which is impermissible in the context of a
Rule 60(b) Motion. E.g., Fleming, 865 F.2d at 484.
Under a generous interpretation of Petitioner’s Rule 60(b)
Motion,

the

“mistakes”

Court
of

law

finds
and

that
fact

he

is

entitle

suggesting
him

to

the
relief

Court’s
under

Rule 60(b)(1). See Fed. R. Civ. P. 60(b)(1) (providing for vacatur
due to “mistake, inadvertence, surprise, or excusable neglect”).
“Rule 60(b)(1) affords a party relief from a material mistake that
changed the outcome of the court’s judgment.” Matura v. United
States, 189 F.R.D. 86, 89 (S.D.N.Y. 1999) (citing Fetik v. New York
Law School, 97 Civ. 7746, 1999 WL 459805, at *4 (S.D.N.Y. June 29,
1999)

(declining to provide relief under Rule 60(b)(1) where

movant did not show “any material issue of fact or law overlooked
by the Court”)). “Rule 60(b)(1) will not provide a movant an
additional opportunity to make arguments or attempt to win a point
already ‘carefully analyzed and justifiably disposed.’” In re Bulk
Oil (USA) Inc., No. 89-B-13380, 2007 WL 1121739, at *10 (S.D.N.Y.
Apr. 11, 2007) (quoting Matura, 189 F.R.D. at 9). As discussed
further below, the Court’s previous findings do not constitute the
type of “mistake” contemplated by Rule 60(b)(1). Petitioner’s Rule
60(b) Motion asks the Court to “reconsider issues already examined
simply because Petitioner is dissatisfied with the outcome of his
case.” Matura, 189 F.R.D. at 90. While a court generally should not
entertain such a motion, because it “would be a waste of judicial

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resources,” id., the Court, in light of Petitioner’s pro se status,
has re-analyzed his arguments.
The Court turns first to Petitioner’s contention that he did
in fact request an additional extensions of time to file objections
to the R&R, beyond the four extensions he did receive (which
totaled over one year). Contrary to Petitioner’s assertion, his
exhibits prove that he did not request additional extensions of
time to file objections after the deadline of December 14, 2017,
passed. Instead, Petitioner filed other motions in this Court and
in the State courts. The Court adheres to its prior ruling on this
point.
Next, Petitioner notes that he cited Lucas v. Miles, 84 F.3d
532 (2d Cir. 1996), for the proposition that the Court was required
to advise him that his Petition was subject to dismissal for
failure to timely file objections. As Respondent points out,
Petitioner has misread Lucas, which held that a district court
abused its discretion in sua sponte dismissing with prejudice a pro
se litigant’s tardily-filed supplemental complaint. The Circuit
noted that there was no showing of any prejudice to the opposing
parties caused by the litigant’s delay and held that the district
court

should

have

given

the

litigant

prior

warning

that

unauthorized delay in filing might result in dismissal.
at

535-36.

Here,

the Petition

was

not dismissed

pursuant

an
Id.
to

Rule 41(b); rather, it was dismissed because, as Judge McCarthy
correctly found, it was wholly without merit.
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Petitioner lastly argues that this Court erred in rejecting,
as legally and factually baseless, his contention that he needed a
stay in order to obtain the victim’s medical records before he
could file his objections to the R&R. Petitioner asserts that he
needed the victim’s medical records to show “the contributory
nature of the medical personnel to the injuries which caused [his]
offense to be raised from a B felony to an A-ii [sic] felony
offense.” Petitioner states that Judge McCarthy recommended that
the habeas petition be dismissed “based on the medical testimony of
Dr. Bass and Nurse Kelly, who [Judge McCarthy] said established
that

the

medical

evidence

was

legally

sufficient

to

find

[Petitioner] guilty of the enhanced [sic] Penal Law § 130.96.”
According to Petitioner, “in order for [him] to rebut this claim,
[he] needed the medical records to show the contributory nature of
Nurse Kelly’s two enemas (which she never should have given and
which exasperated [sic] the complainant’s condition), and Dr. Bass’
[b]otched colonoscopy (which she put on backwards).” Petitioner
complains that “the district attorney has refused to give [him]
even a

redacted

copy

of

the

medical

records,”

which thereby

necessitated his request for a stay of the proceeding. As discussed
further

below,

the

medical

records

were

not

necessary

for

Petitioner to adequately assert objections to the R&R.
The Court begins by observing that Petitioner was charged in
a single-count indictment with Predatory Sexual Assault Against a
Child (N.Y. Penal Law § 130.96).

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As relevant to this case, “a

defendant commits the crime of predatory sexual assault against a
child under [N.Y. Penal Law §] 130.96 when, being 18 years old or
more, he or she commits the crime of aggravated sexual abuse in the
first degree and the victim is less than 13 years old.” People v.
Cordero, 110 A.D.3d 1468, 1469, 972 N.Y.S.2d 787 (4th Dep’t 2013).
A defendant in turn “is guilty of aggravated sexual abuse in the
first degree when ‘he or she inserts a foreign object in the . . .
rectum or anus of another person causing physical injury to such
person . . . [w]hen the other person is less than [11] years
old[.]’” Id. (quoting N.Y. Penal Law § 130.70 [1][c]; ellipsis and
brackets in original).1
At

trial,

the

6

year-old

victim

(“D.”)

testified

that

Petitioner inserted the handle of a fork 6 centimeters into the his
anus, in order to punish him for having slept with a stuffed
animal. The victim’s 9 year-old brother, “A.,” did not see the
assault, as he was in his own bedroom. However, A. did hear the
victim scream very loudly. A. then saw Petitioner, who appeared
angry, walk out of the victim’s bedroom and go into the kitchen
where he started washing feces off of his hands. Petitioner did not
allow A. into D.’s room to check on him but, even from outside the
room, A. observed the victim crying and naked in his room and also
saw that there was fecal matter on his clothing.

1

It is undisputed
incident, and that the
in the first degree is
sexual assault against

that Petitioner was over the age of 18 at the time of the
victim was under the age of 11. Aggravated sexual abuse
a class B felony. See N.Y. Penal Law § 130.70. Predatory
a child is a class A-II felony.

-7-

Petitioner then brought A. and D., who was crying and in
obvious pain, to school. A bus aide immediately escorted D. to the
school nurse who observed him to be curled into a fetal position
with an elevated heart rate, diminished bowel sounds, and “surgical
belly,” a medical term for an overly rigid abdomen. The victim was
brought to the hospital where a CT scan revealed that his bowel had
been perforated. Dr. Kathryn Bass testified that the injury was
recent inflicted within the previous 4 to 6 hours, and could not
have been self-inflected or accidentally caused; nor could it have
been caused by a person’s finger. Dr. Bass stated that the victim
would have died from the flow of toxins into his body if he had not
undergone surgery to repair the perforated bowel and place a
colostomy bag.
Petitioner appears to contend that but for the pre-surgery
enemas

performed

by

Nurse

Karen

Kelly

at

the

hospital

and

complications of the surgery performed by Dr. Bass, he could not
have been found guilty of the crime with which he was charged. “It
is well settled that if ‘felonious assault is operative as a cause
of death [or injury], the causal co-operation of [even] erroneous
surgical or medical treatment does not relieve the assailant from
liability for homicide [or assault][.]’” People v. Snow, 79 A.D.3d
1252, 1253, 912 N.Y.S.2d 334, 336 (3d Dep’t 2010) (quoting People
v. Kane, 213 N.Y. 260, 270 (1915); citation omitted)). Here, the
prosecution

only

was

required

to

prove

the

victim

sustained

“physical injury” as the result of Petitioner having “insert[ed] a
-8-

foreign object in [his] . . . rectum or anus. . . .” N.Y. Penal law
§ 130.70[1][c]. Under New York Penal Law, “‘[p]hysical injury’
means impairment of physical condition or substantial pain.” N.Y.
Penal Law § 10.00(9).
Even before the victim arrived at the hospital, there was
ample proof, by way of A.’s testimony and the victim’s testimony,
of the requisite elements of the insertion of a foreign object into
the

victim’s

rectum

which

caused

impairment

of

his

physical

condition and substantial pain. See People v. Pierce, 266 A.D.2d
721, 722, 698 N.Y.S.2d 753, 755 (3d Dep’t 1999) (rejecting claim
that prosecution failed to prove victim sustained physical injury
as required by N.Y. Penal Law § 130.70; the victim testified,
concerning the incident with the grease gun, that defendant “put a
pump with water up my butt [and] [i]t hurt”; court found that “her
subjective description of the pain was sufficient to establish that
she sustained physical injury within the meaning of Penal Law
§ 10.00(9)”) (citation omitted).
The CT scan, as interpreted by a medical expert (Dr. Bass),
provided additional evidence establishing that a foreign object and
not a human digit had been inserted into D.’s rectum and had
perforated his bowel, causing dangerous toxins to escape into his
body. Obviously, a perforated bowel qualifies as an impairment of
the victim’s physical condition sufficient to demonstrate “physical
injury” under the statute. In other words, even before the surgery
and the enemas which Petitioner claims were negligently performed,

-9-

there was substantial and compelling evidence that Petitioner
committed all the elements of predatory sexual assault against a
child. See N.Y. Penal Law §§ 130.96, 130.70. The victim’s medical
records would not have changed Judge McCarthy’s recommendation; nor
would they have altered this Court’s analysis.
Petitioner

is

advised

that

a

further

motion

for

reconsideration or vacatur raising the same or similar arguments
will be summarily denied without further explanation as “a waste of
judicial resources.” Matura, 189 F.R.D. at 90.
IV.

Conclusion
For the foregoing reasons, Petitioner’s Rule 60(b) Motion

(Docket No. 44) 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, 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:

July 30, 2019
Rochester, New York

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