McFadden v. Poole

Filing 21

ORDER denying 19 Motion for Reconsideration. Signed by Hon. Michael A. Telesca on 2/18/14. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
RONALD McFADDEN,
DECISION AND ORDER
No. 07-CV-6475T

Petitioner,
-vsTHOMAS POOLE,
Respondent.
______________________________
I.

Introduction
Pro

se

Petitioner

Ronald

McFadden

(“Petitioner”)

was

convicted, after a jury trial, of Murder in the Second Degree (N.Y.
Penal Law (“Penal Law”) §§ 20.00, 125.25[3]) and Attempted Robbery
in the First Degree (Penal Law §§ 20.00, 110.00, 160.15[4]).
Petitioner was sentenced to twenty-five years to life on the murder
conviction and fifteen years imprisonment on the attempted robbery
conviction.
By Decision and Order dated May 3, 2010, this Court denied
Petitioner’s application under 28 U.S.C. § 2254 for a writ of
habeas corpus (Dkt. No. 15) (hereinafter “the habeas decision”),
and judgment was entered three days later on May 6, 2010 (Dkt.
No. 16).
Petitioner now seeks reconsideration of the Court’s habeas
decision, pursuant to Fed. R. Civ. P. 60(b) (Dkt. No. 19).1

For

the reasons that follow, Petitioner’s motion is denied.

1

The Court liberally construes pro se Petitioner’s correspondence of
December 25, 2013 (Dkt. No. 19) as a motion pursuant to Fed. R. Civ. P. Rule
60(b) to the extent that he asks the Court to revisit and reconsider its May 3,
2010 Decision and Order denying him habeas relief and dismissing the habeas
petition.

II.

The Motion is Untimely
Rule 60(b) allows a party to seek relief from a final judgment

for the following reasons: (1) mistake, inadvertence, surprise, or
excusable

neglect;

(2)

newly

discovered

evidence;

(3)

fraud;

(4) the judgment is void; or (5) the judgment has been satisfied.
Fed. R. Civ. P. 60(b)(1) - (5).

Subsection (6) allows a party to

move for “any other reason that justifies relief.”

Fed. R. Civ. P.

60(b)(6).
Under Rule 60(c), the timeliness of a Rule 60(b) motion
depends upon which of 60(b)’s six distinct “[g]rounds for relief
the movant invokes; that section provides that [a] motion under
Rule 60(b) must be made within a reasonable time—and for reasons
(1), (2), and (3), no more than a year after the entry of the
judgment.”

Fed. R. Civ. P. 60(c).

Petitioner filed the instant motion in this Court on or about
December 25, 2013,2 more than three years after entry of the
judgment from which he seeks relief and thus well beyond the
one-year period applicable to most 60(b) motions.

To the extent

Petitioner has not explicitly invoked any particular subsection of
60(b) and his motion could liberally be construed as being brought
under subsection (6), his motion appears to survive the one-year

2

Petitioner’s motion is dated December 25, 2013, but was not docketed in
this Court until January 14, 2014. See Dkt. No. 19. Under the so-called “prison
mailbox rule,” a pro se prisoner’s papers are deemed filed when they are handed
over to prison officials for forwarding to the court. See Houston v. Lack, 487
U.S. 266, 270 (1988). Therefore, although Plaintiff's motion was not entered on
the Court's docket until January 14, 2014, the Court will give Petitioner the
benefit of the earlier date and consider it to have been filed as of December 25,
2013, the date it was signed by Plaintiff. See, e.g., Luna v. Artus, No. 10 Civ.
2565 (PKC) (KNF), 2010 U.S. Dist. LEXIS 60927 2010 WL 2594303, at *1 n.1
(S.D.N.Y. June 18, 2010) (citing Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.
2001)).

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bar.

This requires the Court to consider, instead, whether the

approximate three and a half years between judgment and motion is
a “reasonable time” within the meaning of 60(c).

The Court finds

that it is not.
Determining whether a motion to vacate has been filed within
a

reasonable

circumstances

time
of

“requires

the

case,

scrutin[izing]

and

balanc[ing]

finality with the reason for delay.”

the
the

particular

interests

in

Hom v. Brennan, 840 F. Supp.

2d 576, 581 (E.D.N.Y. 2011) (alterations in original) (internal
quotation

marks

and

citation

omitted);

see

also

Baldinger, 38 F.3d 1266, 1275 (2d Cir. 1994).

DeWeerth

v.

In this case,

Petitioner has not pointed to any circumstances whatsoever that
prevented him from filing the instant motion earlier.

While the

Court is mindful that Petitioner is proceeding pro se and that his
submissions are held to “less stringent standards than formal
pleadings drafted by lawyers . . .” Hughes v. Rowe, 449 U.S. 5, 9
(1980) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)), his
pro se status does not excuse him from complying with the timing
requirements of Rule 60(c). See generally Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (holding that pro se
status “does not exempt a party from compliance with relevant rules
of

procedural

and

substantive

law”).

When

a

plaintiff

is

proceeding pro se, “all normal rules of pleading are not absolutely
suspended.”

Jackson v. Onondaga Cnty., 549 F. Supp. 2d 204, 214

n.28 (N.D.N.Y. 2008).
Accordingly, Petitioner’s motion, made more than three years
after this Court’s entry of judgment is time-barred.

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Indeed,

Courts have found delays of shorter duration to be unreasonably
long in the context of Rule 60(b) motions.

See, e.g., Kellogg v.

Strack, 269 F.3d 100, 104 (2d Cir. 2001) (“Kellogg’s motion was
made twenty-six months after the entry of the final judgment, a
period of time which constitutes a patently unreasonable delay
absent mitigating circumstances.”); James v. United States, 603 F.
Supp.

2d

472,

479

(E.D.N.Y.

2009)

(“Petitioner

waited

over

twenty-one months before filing this motion . . . . Petitioner has
not explained this delay. Federal courts have found unexcused
delays shorter than twenty months to be unreasonable and therefore,
time-barred . . . .
claim

as

not

made

Accordingly, the court finds that the []
within

a

reasonable

considered.”) (citations omitted);
2833,

2002

U.S.

Dist.

LEXIS

time

and

may

not

be

Moses v. United States, 97 CIV

16799,

2002

WL

31011864,

at

*2

(S.D.N.Y. Sept. 9, 2002) (listing decisions that rejected 60(b)
motions on timeliness grounds for delays ranging from ten to twenty
months) (citations omitted).
V.

Conclusion
For the reasons stated above, the motion for reconsideration

(Dkt. No. 19) pursuant to Fed. R. Civ. P. 60(b) is denied.

Because

Petitioner has failed to make “a substantial showing of a denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2),

I decline to

issue a certificate of appealability. See, e.g., Lucidore v. New
York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir. 2000).
The

Court

also

hereby

certifies,

pursuant

to

28

U.S.C.

§ 1915(a)(3), that any appeal from this judgment would not be taken

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in good faith and therefore denies leave to appeal as a poor
person.

Coppedge v. United States, 369 U.S. 438 (1962).

Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:

February 18, 2014
Rochester, New York

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