McCullough v. Filion

Filing 18

ORDER denying in its entirety with prejudice 17 Plaintiff's Motion seeking relief under Rule 60(b), appointment of counsel, and an evidentiary hearing. Signed by Hon. Michael A. Telesca on 11/7/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
GEROME McCULLOUGH,
No. 01-CV-6484
DECISION AND ORDER

Petitioner,
-vsGARY H. FILION, Superintendent,
Respondent.
_____________________________________
I.

Introduction
In 2001, Gerome McCullough (“McCullough” or “Petitioner”)

filed a pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging a judgment entered in Monroe County Court
on February 28, 1996, following a jury verdict convicting him of
two counts of murder in the second degree and three counts of
robbery in the first degree.

The parties consented to disposition

of the matter by a magistrate judge pursuant to 28 U.S.C. § 636(b),
and on

March

31,

2005,

Magistrate Judge Victor

E.

Bianchini

dismissed the petition and declined to issue a certificate of
appealability. Judgment was entered the same day. On July 21, 2006,
the United States Court of Appeals for the Second Circuit issued a
Mandate dismissing McCullough’s application for a certificate of
appealability,

agreeing

with

Magistrate

Judge

Bianchini

that

McCullough had not made a substantial showing of the denial of a
constitutional right. The Mandate was filed in this Court on
September 21, 2006.

For the following seven years, there was no activity by
McCullough. Then, on October 19, 2012, McCullough filed a “Notice
of Motion Pursuant to Rule 60(b)(1)(6) of the Federal Rules of
Civil Procedures [sic]”. (Dkt. #17). In the motion, McCullough
seeks (1) the appointment of counsel, (2) an evidentiary hearing,
and (3) an order vacating the judgment dismissing his petition
pursuant to subsection (3) of the Rule 60(b) of the Federal Rules
of Civil Procedure.
As Magistrate Judge Bianchini’s term in this District has
concluded, this matter has been transferred to the undersigned for
further proceedings. For the reasons set forth below, McCullough’s
motion is denied in all respects.
II.

Discussion
A.

Rule 60(b) Relief

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

-2-

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).
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). Although McCullough mentions subsection (6)
of Rule 60(b) in the title of his pleadings, he solely refers to
subsection (3) (fraud on the court) in his moving papers. See,
e.g., Petitioner’s Affidavit (“Pet’r Aff.”) at 2, ¶3. McCullough’s

-3-

application for relief under Rule 60(b)(3) is clearly untimely as
it was made well-after the one-year deadline expired.
Even if the Court deemed McCullough’s motion as eligible for
consideration under Rule 60(b)(6), which is the catch-all provision
reserved for relief in the interests of justice and which does not
have a time limitation, it still must fail. Subsection (6) “is
properly

invoked

when

there

are

extraordinary

circumstances

justifying relief, when the judgment may work an extreme and undue
hardship,

and

when

the

asserted

grounds

for

relief

are

not

recognized in clauses (1)-(5) of the Rule.” Nemaizer v. Baker, 793
F.2d at 63 (citation omitted). A motion for relief under Rule
60(b)(6) must be filed “within a reasonable time.” FED. R. CIV. P.
60(b)(6).
The “new evidence” offered by McCullough in support of his
Rule 60(b) motion pertains to his habeas claim that the trial court
erred in permitting an in-court identification of him for which the
prosecution failed to serve prior notice pursuant to N.Y. Crim.
Proc. Law (“C.P.L.”) § 710.30 (“710.30 notice”). Several days into
the trial, the prosecutor informed the court and defense counsel
that two witnesses, Roman and Bermudez, had told her the previous
day that they had observed a photograph of McCullough at the police
station when they were interviewed at the time of the incident.
However, the prosecution’s § 710.30 notice did not indicate that
Roman

and

Bermudez

had

identified

-4-

McCullough

in

a

pre-trial

identification procedure. At the time the issue arose, Bermudez
already had testified and made an in-court identification of
McCullough, though Roman had not yet testified.
In a hearing conducted outside the presence of the jury,
Bermudez

testified

that

she

observed

a

color

photograph

of

McCullough in a six-person array, while Roman testified that the
photograph she saw of McCullough was black-and-white and appeared
in an “album” with many pages.
However, the testimony of Roman and Bermudez conflicted with
that of the four officers who interviewed them at the police
station. Officer Sheridan explained that he had to take extra steps
in

compiling

photograph

the

McCullough

available

of

photo

McCullough

array,
was

in

because

the

only

black-and-white.

Therefore, Officer Sheridan printed the rest of the pictures in
black-and-white so as not to call attention to McCullough. Officer
Sheridan indicated that he was the only officer who had possession
of the McCullough photo array that night, and that he never gave it
to any of the other investigating officers. Officer Sheridan
testified that Bermudez could not have seen a color photograph of
McCullough because there was only one photograph of him, and it was
black-and-white.

He

further

stated

that

he

never

showed

the

McCullough photo array to Bermudez or Roman.
In sum, all four police officers who had contact with Bermudez
and Roman testified that they never showed either of them a

-5-

photograph of McCullough. Moreover, Officer Montalvo testified that
the practice of showing “albums” of mug shots to witnesses, such as
the

kind

department

allegedly
in

1989.

seen
The

by

Roman,

trial

was

court

discontinued

credited

the

by

the

officers’

testimony and concluded that Bermudez and Roman were mistaken and,
in fact, had not been shown a photograph of McCullough by the
police.
Finding no reason to disturb the trial court’s determination,
which rested on the credibility of the witnesses and thus is
entitled to great weight, the Appellate Division held on direct
appeal that no § 710.30 notice was required since Bermudez and
Roman had not participated in a pre-trial identification procedure
with McCullough.
Magistrate Judge Bianchini held that he was bound to accept
these factual findings by the state courts because McCullough had
failed to

rebut

the

presumption

of

correctness

by

clear

and

convincing evidence as required by 28 U.S.C. § 2254(e)(1). See
Harris v. Kuhlmann, 346 F.3d 330, 350 (2d Cir. 2003) (noting that
Section 2254(e)(1)’s “presumption of correctness is particularly
important when reviewing the trial court’s assessment of witness
credibility”) (quotation omitted).
In his Rule 60(b) motion, McCullough contends that he has
exposed “fraud” on the part of the police and prosecutor in their
representations “that the witnesses never viewed a color photo of

-6-

the petitioner, they only saw a black and white [photo], and that
in fact, their [sic] was no color photo of the petitioner on file.”
Pet’r Aff. at 2, ¶ 5. Petitioner has produced documents obtained as
the result of a Freedom of Information Law (“F.O.I.L.”) request
made on or about June 6, 2005, for information regarding any arrest
photographs

of

him.

The

response

from the

City

of

Rochester

indicates that it was in possession of two (2) color photographs of
McCullough, one take on November 14, 1994, and the other taken on
November 22, 1994. See Exhibit 1 to Pet’r Aff. McCullough argues
that this constitutes “clear and convincing evidence” proving that
Officer Sheridan lied when he stated that the only photograph
available

of

McCullough

was

in

black-and-white.

According

to

McCullough, this constitutes “fraud upon the court” both at the
state

and

federal

levels

and

establishes

that

he

was

unconstitutionally convicted.
As an initial matter, the Court finds that McCullough’s motion
was not made within a reasonable time. McCullough obtained the
information concerning the two color photographs, the basis of this
motion, in June 2005. However, he waited over seven years until
seeking Rule 60(b) relief. Under the circumstances of this case,
seven years is unreasonable as a matter of law.
Furthermore,

the

existence

of

two

color

photographs

of

McCullough, contradicting Officer Sheridan’s testimony that there
was only one black and white photo available, does not require the

-7-

extraordinary relief afforded by Rule 60(b)(6) because it does not
establish that a constitutional error at McCullough’s trial. The
gravamen of McCullough’s habeas claim is that the prosecution
failed to properly serve a § 710.30 notice as to Bermudez and
Roman. This is question of state law, and a trial court’s alleged
breach of a state law is not cognizable in a federal habeas
proceeding. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)
(stating that “it is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions” and “a
federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States”). Thus,
even if the admission of the identification testimony at issue did
contravene C.P.L. § 710.30(1), a federal constitutional violation
did not result since the Constitution does not guarantee a right to
advance notice of identification testimony. Dotson v. Ercole,
No. 06 Civ. 7823(BSJ)(DFE), 2009 WL 1615997, at *2 (S.D.N.Y.
June 9, 2009) (citing Aziz v. Warden of Clinton Corr. Fac., No. 92
Civ. 0104, 1992 U.S. Dist. LEXIS 14542, at *31 (S.D.N.Y Sept. 8,
1992)

(holding

that

“[v]iolation

of

this

state

right

to

notification [i.e., C.P.L. § 710.30] does not rise to the level of
a constitutional violation”); Roberts v. Scully, 875 F. Supp. 182,
191 (S.D.N.Y.1 995) (finding that violation of C.P.L. § 710.30 does
not “reflect a claim of constitutional magnitude,” so that any
error is not cognizable on a habeas review).

-8-

In

light

of

the

Court’s

disposition

of

McCullough’s

application for relief under Rule 60(b), his applications for
appointment of pro bono counsel and an evidentiary hearing are
moot. Accordingly, they are dismissed.
III. Conclusion
For

the

foregoing

reasons,

Gerome

McCullough’s

motion

(Dkt. #17) seeking relief under Rule 60(b), appointment of counsel,
and

an

evidentiary

hearing,

is

denied

in

its

entirety

with

prejudice.
SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

Rochester, New York
November 7, 2012

-9-