Brown v. Rivera et al
Filing
25
DECISION AND ORDER denying 23 Motion to Vacate and denying certificate of appealability. Signed by Hon. Michael A. Telesca on 9/3/2019. A copy of this Decision and Order was sent on 9/3/19 to the petitioner via first-class U.S. Mail. (AFB)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EDWARD BROWN,
Petitioner,
No. 6:06-cv-06274-MAT
DECISION AND ORDER
-vsISRAEL RIVERA, Superintendent,
Coxsackie Correctional Facility, and
ELIOT SPITZER, Attorney General,
State of New York,
Respondents.
I.
Introduction
Edward Brown (“Petitioner” or “Brown”) filed this pro se
Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging the constitutionality of his May 3, 1996 conviction,
following a jury trial in Monroe County Court (Maloy, J.) of New
York State, on one count of second-degree (intentional) murder. On
July 23, 2009, this Court issued a Decision and Order denying
Brown’s request
for
a
writ
of
habeas
corpus,
dismissing
the
Petition, and denying a certificate of appealability. Brown filed
a notice of appeal with the United States Court of Appeals for the
Second Circuit but did not pay the filing fee. The Second Circuit
sua sponte issued an order to show cause on October 28, 2009, why
the appeal should not be dismissed for failure to pay the required
filing fee. After Brown failed to respond, the Second Circuit
-1-
dismissed his appeal on April 12, 2010.
On June 30, 2019, Brown filed the instant pro se motion to
vacate pursuant to Federal Rule of Civil Procedure 60(b)(6) (“Rule
60(b)(6) Motion”). For the reasons discussed herein, the Court
denies the Rule 60(b)(6) Motion.
II.
Discussion
A.
Rule 60(b)(6) in the Habeas Context
The United States Supreme Court has held that Rule 60(b)
applies in the habeas context. Gonzalez v. Crosby, 545 U.S. 524,
534 (2005). Rule 60(b)(6), the particular provision under which
Brown asserts his motion, permits reopening of the judgment when
the “movant shows ‘any . . . reason justifying relief from the
operation
of
the
judgment’
other
than
the
more
specific
circumstances set out in Rules 60(b)(1)-(5).” Id. at 529-30.
Regardless of how it is labeled, a petitioner’s Rule 60(b)
motion for relief from the denial of a habeas petition may, in
certain circumstances, be considered a second or successive habeas
petition under 28 U.S.C. § 2244(b)(1). See Gonzalez, 545 U.S. at
531. In Gonzalez, the Supreme Court explained that a motion for
relief from judgment seeking to advance one or more substantive
claims following denial of a habeas petition, such as a motion
seeking leave to present a claim that was omitted from habeas
petition due to mistake or excusable neglect, or seeking to present
newly discovered evidence not presented in petition, or seeking
-2-
relief due to a purported change in substantive law since the
petition was
successive
denied,
habeas
is
properly
petition,”
classified as a
requiring
“second
authorization
or
under 28
U.S.C. § 2244(b)(3)(A). Id.
On
the
other
hand,
a
Rule
60(b)
motion
challenges
“the
integrity of the federal habeas proceedings,” and is thus properly
brought under this rule, when it “merely asserts that a previous
ruling which precluded a merits determination was in error—for
example,
a
denial
for
such
reasons
as
failure
to
exhaust,
procedural default, or statute-of-limitations bar.” Gonzalez, 545
U.S. at 532 n.4. For example, in Rodriguez, the Second Circuit held
that a habeas petitioner’s claim that his state trial attorney made
fraudulent representations to the federal district court and that
the respondent fraudulently concealed that he had deposed the trial
attorney related to the integrity of the federal habeas proceeding,
not to the integrity of the state criminal trial. 252 F.3d at 199.
The Second Circuit explained that “[t]hese grounds, if proven,
would
simply
result
in
the
reopening
of
the
federal
habeas
proceeding—not in the vacating of the state criminal judgment.” Id.
And in Gonzalez, the Supreme Court held that the petitioner’s Rule
60(b) motion “challenge[d] only the District Court’s previous
ruling on the AEDPA1 statute of limitation,” and thus was “not the
1
The Anti-Terrorism and Effective Death Penalty Act, Pub. L. No. 104-132,
110 Stat. 1214 (1996).
-3-
equivalent of a successive habeas petition.” 545 U.S. at 535-36.
It bears emphasizing that “[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.’” Brown v. Ercole, 563 F. App’x 821, 822
(2d Cir. 2014) (unpublished opn.) (quoting Rodriguez v. Mitchell,
252 F.3d 191, 199 (2d Cir. 2001); citing Gonzalez v. Crosby, 545
U.S. at 538; emphasis supplied). “The remedy, if granted, is simply
‘the reopening of the federal habeas proceeding.’” Brown, 563 F.
App’x at 822 (quoting Rodriguez, 252 F.3d at 199).
To properly characterize Brown’s Rule 60(b)(6) Motion, the
Court must determine if it advances one or more new “claims” for
relief from a State court’s judgment of conviction. See Gonzalez,
545 U.S. at 531. The Supreme Court explained that “[a] motion that
seeks to add a new ground for relief . . . will of course qualify”
as a second or successive petition, while “[a] motion can also be
said to bring a ‘claim’ if it attacks the federal court’s previous
resolution of a claim on the merits, since alleging that the court
erred in
denying
habeas relief
on
the merits
is
effectively
indistinguishable from alleging that the movant is, under the
substantive provisions of the statutes, entitled to habeas relief.”
Id. (footnote omitted).
B.
Grounds for the Rule 60(b)(6) Motion
Brown raises several argument points in his Rule 60(b)(6)
-4-
Motion. The Court summarizes them below and addresses whether they
relate to the integrity of the habeas proceeding or related to the
integrity of the State criminal trial and, as such, are new
“claims” outside of Rule 60(b)’s scope.
1.
Respondent’s Alleged Failure to Comply with Rule 5
of the Rules Governing § 2254 Proceedings.
Brown asserts that “extraordinary circumstances exist where
petitioner
has
discovered-post
judgment
that
improper
and
prejudicial conduct identified as failure to comply with the
Court’s Rule 5 order presenting an incomplete state court record in
the prior habeas proceeding was committed by the respondent[.]”
Rule 60(b)(6) Motion at 2. Specifically, Brown points to the
Court’s July 31, 2006 Order directing Respondent to “provide the
Court the transcripts of the proceedings, (pre-trial, trial),
together with any record(s) of such proceedings[.]” Brown contends
that Respondent “failed to comply with this Order where it failed
to file a complete State Court Record containing Jury Notes #7 and
#8, presented herein as [Exhibits K and L], respectively.” Rule
60(b)(6) Motion at 3 (brackets in original). According to Brown,
Respondent’s
“filing
an
incomplete
State
Court
Record,
made
compliance with Habeas procedural rules impracticable in the prior
proceeding, therein affecting the integrity of that proceeding.”
Id. at 5.
As an initial matter, motions brought under clause (6) of Rule
60(b) must be filed “within a reasonable time.” FED R. CIV. P. 60(b).
-5-
Ten years from the date judgment was entered is clearly not a
reasonable time. See Rodriguez, 252 F.3d at 201 (“We do not think
that three and one-half years from the date judgment was entered
[dismissing the habeas petition] is a reasonable time [for purposes
of Rule 60(b)(6)].”). Even if the motion were timely filed, it
still fails because “[r]elief under Rule 60(b)(6) is appropriate
only
in
cases
presenting
extraordinary
circumstances,”
First
Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189,
196 (2d Cir. 1989) (internal quotation marks omitted). Brown has
failed to allege any such circumstances.
Furthermore, in ground one, Brown has not identified an error
that affects the integrity of the habeas proceeding because in his
Petition, he raised no claims for habeas relief based on jury
selection, jury deliberations, or the trial court’s or trial
counsel’s handling of any juror-related issues. Therefore, the
absence of the two jury notes from the State court records did not
detract from the Court’s ability to fully consider the merits of
his habeas petition in 2009.
2.
Ineffective Assistance of Trial Counsel
Brown contends that the jury notes referenced above were
submitted to County Court Judge Maloy on March 12, 1996, but were
not read in open court which was a violation of New York Criminal
-6-
Procedure Law (“CPL”) § 310.30.2 He faults his trial counsel for
failing to preserve this error by way of objection, which resulted
in Brown being unable to argue this claim on direct appeal. Brown
contends that had trial counsel objected to this error, he would
have been entitled to “automatic reversal of his conviction, where
Judge Maloy conducted ex-parte communications with the deliberating
Jury concerning ‘fear & apprehension’, which constitutes improper
and prejudicial conduct” under People v. O’Rama, 78 N.Y.2d 270
(1991).3 See Rule 60(b)(6) Motion at 7.
This argument plainly attacks the integrity of Brown’s State
criminal trial and has nothing to do with the integrity of the
Federal habeas proceeding. Therefore, it constitutes a new “claim”
2
CPL § 310.30 provides in relevant part as follows:
At any time during its deliberation, the jury may request the court
for further instruction or information with respect to . . . to any
other matter pertinent to the jury’s consideration of the case. Upon
such a request, the court must direct that the jury be returned to
the courtroom and, after notice to both the people and counsel for
the defendant, and in the presence of the defendant, must give such
requested information or instruction as the court deems proper. . .
.
N.Y. CRIM. PROC. LAW § 310.30.
3
In People v. O’Rama, the New York Court of Appeals construed CPL § 310.30to
require that, “whenever a substantive written jury communication is received by
the Judge, it should be marked as a court exhibit and, before the jury is
recalled to the courtroom, read into the record in the presence of counsel.” 78
N.Y.2d at 277-78. “[T]here is no corollary requirement to CPL § 310.30 under
federal law.” Jones v. Annucci, 124 F. Supp.3d 103, 130 (N.D.N.Y. 2015) (“[A]ny
alleged error in the court’s handling of the jury notes was solely a violation
of state law, beyond the purview of this Court, and not a constitutional
violation.”) (citing Cornado v. Bellnier, No. 10–CV05265, 2012 WL 6644637, at
*5–6 (S.D.N.Y. Sept. 20, 2012) (“A claim premised on a violation of [CPL § ]
310.30 does not allege a violation of a federally protected right.”)).
-7-
for relief which
cannot support vacatur under Rule 60(b)(6). In
other words, to the extent that Brown’s Rule 60(b)(6) motion
attempts to asserts a Federal basis for relief from a State court
conviction, it is “in substance a successive habeas petition and
should be treated accordingly.” Gonzalez, 545 U.S. at 531.
Section 2244(b) of Title 28 of the United States Code, as
amended by AEDPA, sets forth several requirements for the filing of
a second or successive habeas corpus application, including a
purported Rule 60(b) motion that must be treated as a second or
successive petition under Gonzalez, 545 U.S. at 531. Of particular
relevance here, Section 2244(b) states that
(A) [b]efore a second or successive application permitted
by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals
for an order authorizing the district court to consider
the application. . . .
28 U.S.C. § 2254(b)(3)(A). The district court does not have subject
matter jurisdiction over any second or successive habeas petition
until such time as the relevant circuit court of appeals determines
that the new petition makes a prima facie showing of the requisite
elements listed in 28 U.S.C. § 2244(b)(2)(A) or (B). See, e.g.,
United
States
v.
Gallegos,
142
F.3d
1211
(10th
Cir.
1998)
(defendant’s third § 2255 motion was filed after April 24, 1996,
the effective date of AEDPA; therefore, he was required to obtain
prior authorization from the circuit court before filing in the
district
court;
however,
defendant
-8-
failed
to
obtain
this
authorization
and
the
district
court
lacked
subject
matter
jurisdiction to decide defendant’s third § 2255; accordingly, the
district
court’s
order
denying
the
motion
must
be
vacated)
(citation omitted).
The Second Circuit has held that “when a second or successive
petition for habeas corpus relief . . . is filed in a district
court without the authorization by this Court that is mandated by
§ 2244(b)(3), the district court should transfer the petition or
motion to this Court in the interest of justice. . . .” Liriano v.
United States, 95 F.3d 119, 123 (2d Cir.1996) (per curiam). The
district court “always has the alternative of simply denying, as
beyond the scope of Rule 60(b) . . . the portion believed to
present new attacks on the conviction.” Gitten v. United States,
311 F.3d 529, 534 (2d Cir. 2002). Here, Brown has already asked the
Second Circuit for leave to file a second or successive petition
based on the two jury notes. That court rejected his motion in a
summary order as follows:
Petitioner’s claims are based on two jury notes that were
submitted to the trial judge. Assuming that evidence
“could not have been discovered previously through the
exercise of due diligence,” Petitioner has failed to make
a showing that “the facts underlying the claim[s], if
proven and viewed in light of the evidence as a whole,
would be sufficient to establish by clear and convincing
evidence that . . . no reasonable factfinder would have
found [him] guilty of the underlying offense.” 28 U.S.C.
§ 2244(b)(2)(B)(i)–(ii). The proffered evidence relates
to the jury deliberation process, and possible juror
bias, but has no bearing on whether Petitioner committed
the charged offense; a reasonable factfinder could still
find Petitioner guilty based on the evidence presented at
-9-
trial.
Summary Order at 1, Brown v. Rivera, 19-536 (2d Cir. May 6, 2019).
It is highly unlikely that the Second Circuit will now permit a
successive habeas petition based on the same factual predicate it
found did not fulfill the requirements of § 2244(b)(2) a mere three
months ago. Therefore, in the interest of judicial economy, the
Court declines to transfer the Rule 60(b)(6) Motion to the Second
Circuit. The Court instead denies the second ground raised by Brown
in the instant motion as outside the scope of Rule 60(b).
3.
Brown
Ineffective Assistance of Appellate Counsel
next
contends
that
his
appellate
counsel
rendered
ineffective assistance on direct appeal by failing to properly
investigate and file a complete record on appeal and failing to
raise the following arguments: trial counsel was ineffective in
failing to object to the violation of CPL § 310.30; and the trial
court violated Browns’s State and Federal constitutional right to
a fair trial by an impartial jury. See Rule 60(b)(6) Motion at 13.
As is the case with ground two, ground three “present[s] new
attacks on the conviction” and therefore is “beyond the scope of
Rule 60(b),” Gitten, 311 F.3d at 534. Therefore, it is denied.
Finally, the Court declines to transfer this branch of the motion
to the Second Circuit out of the same concerns for judicial economy
discussed in the foregoing section.
III. Conclusion
-10-
For the foregoing reasons, the Rule 60(b)(6) Motion is denied.
Brown has not fulfilled the requirements of obtaining a certificate
of appealability, the Court declines to issue one. See Kellogg v.
Strack, 269 F.3d 100, 103-04 (2d Cir. 2001) (per curiam) (citing 28
U.S.C. § 2253(c)).
SO ORDERED
S/ Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
September 3, 2019
Rochester, New York
-11-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?