Carson v. The State of New York

Filing 17

DECISION AND ORDER. Petitioner's motion for reconsideration 16 is DENIED. SO ORDERED. A copy of this Order and NEF have been mailed to the pro se Petitioner. Signed by Hon. Frank P. Geraci, Jr. on 2/27/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MATTHEW M. CARSON,
Petitioner,
Case # 16-CV-688-FPG
v.
DECISION AND ORDER
SUPERINTENDENT OF THE ELMIRA
CORRECTIONAL FACILITY,
Respondent.

INTRODUCTION
Pro se petitioner Matthew M. Carson (“Petitioner”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. On January 17, 2017, Petitioner moved for an
extension of time to reply to the Superintendent of the Elmira Correctional Facility’s
(“Respondent”) response to his petition and to hold his petition in abeyance while he pursues
exhaustion proceedings in state court. ECF No. 11. On February 3, 2017, the Court granted
Petitioner’s motion for an extension of time to file his reply and denied his motion to hold the
petition in abeyance. ECF No. 14.
On February 10, 2017, the Court received a letter from Petitioner in reply to
Respondent’s opposition to his request for a stay, even though Petitioner never indicated that he
intended to serve such a reply.1 ECF No. 15. On February 15, 2017, Petitioner moved for
reconsideration of the Court’s decision denying his request for a stay and abeyance. ECF No.
16. For the reasons that follow, Petitioner’s motion for reconsideration is DENIED.

1

The Local Rules of Civil Procedure for the Western District of New York specify that “[a] moving party
who intends to file and serve reply papers must so state in the notice of motion.” Local R. Civ. P. 7(a)(1).

1

DISCUSSION
Motions for reconsideration are governed by Local Rule of Civil Procedure 7(d)(3) and
Federal Rules of Civil Procedure 59(e) and 60(b). The standard for granting a motion for
reconsideration is “strict, and reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court overlooked.” Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted).

“A motion for

reconsideration should be granted only when the [party] identifies an intervening change of
controlling law, the availability of new evidence, or the need to correct a clear error or prevent
manifest injustice.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729
F.3d 99, 104 (2d Cir. 2013) (citation and internal quotation marks omitted); Shrader v. CSX
Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). It is “not a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
second bite at the apple.” Analytical Surveys, 684 F.3d at 52 (citation omitted). Accordingly, on
a motion for reconsideration, a party may not merely offer the same “arguments already briefed,
considered and decided” or “advance new facts, issues or arguments not previously presented to
the Court.” Schonberger v. Serchuk, 742 F. Supp. 108, 119 (S.D.N.Y. 1990). The decision to
grant or deny a motion for reconsideration is committed to “the sound discretion of the district
court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009).
Here, Petitioner does not identify “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest injustice.”
Kolel Beth, 729 F.3d at 104. Instead, Petitioner attempts to reargue his previous position that the
Court should grant him a stay and abeyance so that he may return to state court to make an
ineffective assistance of counsel claim based on trial counsel’s failure to object to the

2

composition of a photo array. ECF No. 16; ECF No. 11, at ¶¶ 11, 12. As explained in the
Court’s February 3, 2017 decision, Petitioner did not demonstrate “good cause” for failing to
exhaust this claim and thus the Court would abuse its discretion if it granted a stay. Rhines v.
Weber, 544 U.S. 269, 278 (2005) (finding that a stay and abeyance to allow a petitioner to
exhaust his unexhausted claims may be appropriate where (1) the petitioner had good cause for
his failure to exhaust; (2) the unexhausted claims are potentially meritorious; and (3) there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics); Benton v.
LaClair, No. 6:14-CV-06012 MAT, 2015 WL 1003847, at *5 (W.D.N.Y. Mar. 5, 2015)
(“Petitioner cannot show good cause for his failure to exhaust his claim earlier, and absent such
cause, the Court would abuse its discretion in granting a stay.”).
Moreover, the Court implicitly found that this claim was not “potentially meritorious”
when it found that, even if Petitioner had attempted to show good cause, a stay would be futile
because his claim must have been raised on direct appeal pursuant to N.Y. Crim. Proc. Law § 
440.10(2)(c). A state trial court considering Petitioner’s proposed Section 440.10 motion would
be mandated to deny his claim. See generally Sweet v. Bennett, 353 F.3d 135, 139-140 (2d Cir.
2003). Federal habeas courts cannot review the merits of procedurally defaulted claims, unless
the petitioner shows cause and prejudice to excuse the default or that he is actually innocent,
none of which Petitioner has attempted to show. See Mills v. Girdich, 614 F. Supp. 2d 365, 380
(W.D.N.Y. 2009) (“[T]he claims are subject to an unexcused procedural default under the
adequate-and-independent state ground doctrine. Therefore, they are precluded from further
federal habeas review. Because this Court may not review the merits of procedurally defaulted
claims, they cannot serve as ‘potentially meritorious’ bases for habeas relief.”).

3

Aside from the ineffective assistance of counsel claim, Petitioner’s motion for
reconsideration mentions other “SAB claims.” ECF No. 16, at 1. To the extent that Petitioner is
implying an ineffective assistance of appellate counsel claim based on trial counsel’s failure to
object to the composition of the photo array, such a claim would not be procedurally defaulted
because it could be raised on a motion for a writ of error coram nobis in the Appellate Division,
and there are no procedural rules akin to Section 440.10(2)(c) that would prevent the Appellate
Division from considering it on the merits.

Even so, there is no good cause alleged in

Petitioner’s original stay motion or his motion for reconsideration with respect to this claim. If
there is no good cause alleged or shown, the Court abuses its discretion in granting a stay,
regardless of whether the claims are potentially meritorious. See Rhines, 544 U.S. at 277
(“Because granting a stay effectively excuses a petitioner’s failure to present his claims first to
the state courts, stay and abeyance is only appropriate when the district court determines there
was good cause for the petitioner’s failure to exhaust his claims first in state court.”) (emphasis
added). Petitioner cannot demonstrate good cause for failing to institute a motion for a writ of
error coram nobis sooner, because he was on notice of appellate counsel’s purported
ineffectiveness when he received a copy of the appellate brief.
CONCLUSION
For the reasons stated, Petitioner’s motion for reconsideration (ECF No. 16) is DENIED.

IT IS SO ORDERED.
Dated: February 27, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court
4