Sherrod v. Bradt
Filing
44
DECISION AND ORDER denying 39 Motion to Set Aside ; denying 40 Motion to Appoint Counsel. (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 6/4/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTHONY SHERROD,
Petitioner,
No. 6:13-cv-06539 (MAT)
DECISION AND ORDER
-vsDALE A. ARTUS, Superintendent,
Respondent.
I.
Background
On October 3, 2013, Anthony Sherrod (“Petitioner”) filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, challenging the constitutionality of a judgment entered
against him on June 16, 1998, in Erie County Court (Tills, J.),
following
a
jury
verdict
convicting
him
of
an
eleven-count
indictment which included three counts of rape in the first degree
(N.Y. Penal Law § 130.35), three counts of sodomy in the first
degree (former N.Y. Penal Law § 130.50(1)), two counts of robbery
in the second degree (N.Y. Penal Law § 160.10), one count of sex
abuse in the first degree (N.Y. Penal Law § 130.65), one count of
kidnapping in the second degree (N.Y. Penal Law § 135.20), and one
count of unauthorized use of a motor vehicle in the first degree
(N.Y. Penal Law § 165.08). Petitioner is currently serving his
sentence on that judgment.
On November 14, 2013, Petitioner filed a motion to have the
petition stayed and held in abeyance, and also filed a motion to
amend the petition. The Court denied his motion without prejudice
on December 23, 2013, and granted him permission to file an amended
petition by January 31, 2014. On January 26, 2014, Petitioner filed
an amended petition (Dkt #9).
Also on January 26, 2014, Petitioner filed a motion to stay
(Dkt #10) on the basis that, on January 8, 2014, he had filed an
application for a writ of error coram nobis in the intermediate
appellate court. The Court granted his motion to stay on March 26,
2014 (Dkt #12).
On March 10, 2015, Respondent filed a motion to dismiss the
amended petition (Dkt #15) due to Petitioner’s lack of diligence in
prosecuting this action. On March 19, 2015, Petitioner filed a
motion to vacate the stay and reinstate his ineffective assistance
of appellate counsel claims (Dkt #18) and a proposed second amended
petition (Dkt #19).
In a decision and order (Dkt #24) filed June 24, 2016, the
Court vacated the stay as to the exhausted claims listed in the
amended petition (Dkt #9), reinstated the unexhausted claims set
forth in that pleading. The Court denied Respondent’s motion to
dismiss (Dkt #15), and dismissed Petitioner’s proposed second
amended petition (Dkt #19). Finally, the Court directed Respondent
to answer the amended petition (Dkt #9).
On August 26, 2016, Petitioner filed a proposed third amended
petition (Dkt #25-1). On September 21, 2016, Respondent filed his
response (Dkt #26) and memorandum of law in opposition (Dkt #27) to
2
the first amended petition (Dkt #9), as previously directed by the
Court.
On November 8, 2016, the Court issued a decision and order
addressing both the amended petition (Dkt #9) and the proposed
third amended petition (Dkt #25-1). The Court denied relief on the
claims in the amended petition (Dkt #9), and denied Petitioner’s
request to amend (Dkt #25-1) his petition again. The Court also
declined to issue a certificate of appealability.
On May 3, 2017, the United States Court of Appeals for the
Second Circuit denied Petitioner’s motion for a certificate of
appealability and dismissed his appeal (Dkt #38).
On January 29, 2018, Petitioner filed a motion to set aside
the Court’s decision and order dismissing his petition (Dkt #39)
along with a motion to appoint counsel (Dkt #40). Respondent filed
an affidavit (Dkt #41) in opposition to both motions. Petitioner
filed an affirmation (Dkt #42) in reply.
For the reasons discussed below, Petitioner’s motions to
vacate and appoint counsel are denied.
II.
Motion to Vacate
A.
Legal Principles
Pursuant
to
Rule
60(b)
of
the
Federal
Rules
of
Civil
Procedure, “[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:
3
(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). Since Rule 60(b) “allows extraordinary
judicial relief, it is invoked only upon a showing of exceptional
circumstances.” Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)
(collecting cases; emphasis supplied). The Second Circuit has
emphasized that Rule 60(b) “may not be used as a substitute for a
timely appeal.” Id. (collecting cases).
B.
Analysis
1.
Failure to Rule on a Claim
Assistance of Appellate Counsel
of
Ineffective
Petitioner contends that he is entitled to relief under
Rule 60(b)(4) because, in dismissing his habeas petition, the Court
did not rule on his claim that appellate counsel was ineffective in
failing to raise a claim that the prosecutor committed misconduct
during summation. (Dkt #39, pp. 4-6 of 63). Petitioner indicates
that he raised this claim in his February 8, 2012 coram nobis
4
application and then included it as Ground Three on pages 9 and 9-A
of his amended petition (Dkt #9), filed on January 26, 2014.
Petitioner asserts that this omission violated his right to due
process and a fair trial, and rendered this Court’s judgment void.
The Court did reference ground three of the amended petition
in the decision and order (see Dkt #32, p. 4) when it recited the
claims presently raised. However, Petitioner is correct that the
Court overlooked this claim and did not address it further.
Nonetheless,
contrary
to
Petitioner’s
contention,
Rule 60(b)(4) is not the proper vehicle for his motion. Rather, the
motion should have been brought under Rule 60(b)(1), which is “is
‘available for a district court to correct legal errors,’” United
Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir. 2009), such as
when “‘the judge has made a substantive mistake of law or fact,’”
Lugo v. Artus, No. 05 Civ. 1998(SAS), 2008 WL 312298, at *2
(S.D.N.Y. Jan. 31, 2008) (citation omitted). Rule 60(b)(1) is “also
appropriate where a court may have overlooked certain parties’
arguments or evidence in the record.” Badian v. Brandaid Commc’ns
Corp., No. 03 CIV. 2424(DC), 2005 WL 1083807, at *2 (S.D.N.Y.
May 9, 2005) (citing Rumsey v. New York State Dep’t of Corr.
Servs., 580 F. Supp. 1052 (N.D.N.Y. 1984) (granting Rule 60(b)(1)
motion where court may have overlooked triable issues of fact));
5
accord, e.g., PG 1044 Madison Assocs., L.L.C. v. Sirene One,
L.L.C., 229 F.R.D. 450, 452 (S.D.N.Y. 2005).
Motions under Rule 60(b)(1) are subject to a strict time
limitation. See FED. R. CIV. P. 60(c)(1) (“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 or order or
the date of the proceeding.”). Here, the judgment became final in
November 2016, and the instant motion was not filed until well over
a year later, in January 2018. The one-year “limitations period is
‘absolute,’” Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000)
(quoting 12 James Wm. Moore, MOORE’S FEDERAL PRACTICE § 60.65[2][a], at
60–200 (3d ed. 1997)). Therefore, the Court may not grant relief
under Rule 60(b)(1). See id.
The Court has considered whether Petitioner’s motion could
warrant relief under subsection (b)(6), the “catch-all provision”
of Rule 60(b). However, it is clearly settled that “Rule 60(b)(6)
only applies if the reasons offered for relief from judgment are
not
covered
under
Rule 60(b)(1)-(5).”
the
more
specific
provisions
of
Warren, 219 F.3d at 114 (citing Liljeberg v.
Health Serv. Acquisition Corp., 486 U.S. 847, 863 & n. 11 (1988)
(“Rule 60(b)(6) . . . grants federal courts broad authority to
relieve a party from a final judgment . . . provided that the
motion . . . is not premised on one of the grounds for relief
enumerated in clauses (b)(1) through (b)(5).”). As discussed above,
6
Petitioner’s motion based on the Court’s failure to address one of
his
Rule
habeas
claims
60(b)(1).
circumvent
the
properly
Moreover,
1–year
should
“Rule
have
60(b)(6)
limitations
been
may
period
brought
not
that
be
under
used
governs
to
Rule
60(b)(1).” Warren, 219 F.3d at 114 (citing 12 MOORE’S FEDERAL PRACTICE
§ 60.48[2]). The Second Circuit has held that “relief under clause
(6) is available only when the movant acts in a timely fashion . .
. .” United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977). Here,
by waiting over a year to file this motion, the grounds for which
were apparent on the face of this Court’s decision and order,
Petitioner did not act in a “timely fashion.”
Furthermore, even
if this ground for Petitioner’s motion were properly considered
under Rule 60(b)(6), Petitioner cannot establish “extraordinary
circumstances” or “extreme hardship.” See Nemaizer, 793 F.2d at 63
(“This portion [subsection (b)(6)] of . . . Rule [60] is properly
invoked only when there are extraordinary circumstances justifying
relief,
when
hardship[.]”)
“extraordinary
the
judgment
(internal
and
circumstances”
may
work
other
are
an
extreme
citations
apparent
on
and
undue
omitted).
the
No
record.
Likewise, Petitioner will not suffer an extreme hardship because
the omitted claim is wholly without merit, as discussed further
below.
In ground three, Petitioner took issue with the prosecutor’s
statement to the jury that
7
[n]ow I don’t have to prove to you when he got that
shoestring but I think that based on this evidence a
reasonable inference could be drawn that he headed back
with the vaseline to that crime scene. It wasn’t going to
be difficult anymore. He headed back with the vaseline
and he noticed that she was gone and that’s why he took
the shoestring with him because that’s the string that
could link him to the crime, that’s what he left at the
crime scene. . . .
(Dkt #39, p. of 63 (citing T.907).1 Petitioner indicates that trial
counsel objected, stating, “There is no testimony, there is nothing
to that. He has no proof of that.” (Id. (citing T.907)). The trial
court overruled the objection, noting that “it is an inference that
can be drawn.” (T.908).
As
Respondent
pointed
out
in
his
answer
to
the
amended
petition, the record reveals that during his summation, defense
counsel drew the jury’s attention to the victim’s testimony that
she had been bound to the fence by two shoe laces, her underwear,
and a dress. (T.886). On freeing herself, she left one shoe lace at
the scene and fled with the other still attached to her wrist.
(T.887). Defense counsel then called into question the testimony of
Officers Divito and Pringle that, when they arrested Petitioner, he
was clutching a shoe lace in his hand and his sneakers had no
laces. Defense counsel remarked on the improbability of Petitioner
walking around for hours with a shoe lace in his hand instead of
putting it in his shoe. (T.892). Defense counsel then noted that
1
Citations in parentheses to “T.” refer to pages in the trial
transcript.
8
there were three shoe laces—one left at the scene, one on the
victim’s wrist, and one in Petitioner’s hand. (T.893).
Based
on
appellate
the
foregoing
facts,
counsel
is
unfounded,
claim
of
prosecutorial
meritorious
Petitioner’s
because
criticism
Petitioner
misconduct
to
of
had
no
raise.
To
establish prosecutorial misconduct, a petitioner must show that the
prosecutor’s
comments
were
“so
egregious
as
to
violate
[the
petitioner]’s due process rights.” Tankleff v. Senkowski, 135 F.3d
235,
252
(2d
Cir.
1998).
“When
a
defendant
contends
that
a
prosecutor’s [comment] rendered his trial fundamentally unfair, it
is important ‘as an initial matter to place th[e] remar[k] in
context.’” Greer v. Miller, 483 U.S. 756, 765–66 (1987) (quoting
Darden v. Wainwright, 477 U.S. 168, 179 (1986); citation omitted)).
As a matter of federal and New York state law, there is no
deprivation of a fair trial misconduct where the prosecutor has
“responded reasonably in closing argument to defense counsel’s
attacks[.]” United States v. Young, 470 U.S. 1, 12 (1985); see also
Roman v. Filion, No. 04 Civ. 8022(KMW)(AJP), 2005 WL 1383167, at
*26 (S.D.N.Y. June 10, 2005)(“[S]tatements during summation are
permissible if they constitute a ‘fair comment on the evidence’ at
trial and reasonable inference therefrom, or a ‘fair response to
remarks made by the defense counsel during summation.’”) (quoting
People v. Perez, 18 A.D.3d 480, 794 N.Y.S.2d 439, 440 (2d Dep’t
2005)). Such was the case here, and the trial court did not err in
9
overruling defense counsel’s objection because the prosecutor’s
statement was fair commentary on the evidence and was made response
to defense counsel’s summation.
Furthermore, Petitioner was not prejudiced by the prosecutor’s
comment.
The
Second
Circuit
has
observed
that
“[o]ften,
the
existence of substantial prejudice turns upon the strength of the
government’s
case:
if
prejudicial
effect
of
proof
the
of
guilt
comments
is
strong,
tends
to
then
be
the
deemed
insubstantial; if proof of guilt is weak, then improper statements
are more likely to result in reversal.” United States v. Modica,
663 F.2d 1173, 1181 (2d Cir. 1981) (citations omitted). Here, the
prosecution introduced substantial evidence of Petitioner’s guilt,
which
including
the
victim’s
identification,
Petitioner’s
apprehension in the victim’s car within a half an hour after the
victim
reported
the
rape,
the
fact
that
Petitioner
was
in
possession of a shoe lace that matched the one used to restrain the
victim, and the presence of Petitioner’s DNA on her thigh.
Given that Petitioner has not established that he had a
meritorious claim of prosecutorial misconduct, appellate counsel
cannot be
deemed
ineffective for
argument on direct appeal.
failing to
present
such
an
“The failure to include a meritless
argument does not fall outside the ‘wide range of professionally
competent assistance’ to which [p]etitioner was entitled.” Aparicio
v. Artuz, 269 F.3d 78, 99 (2d Cir. 2001) (quoting Jameson v.
10
Coughlin, 22 F.3d 427, 429-30 (2d Cir. 1994); other quotation
omitted).
2.
Denial of Opportunity to Clarify Amended Petition
For his second argument in support of vacatur, which he bases
on Rule 60(b)(6), Petitioner contends that the Court denied him the
opportunity to amend his petition to fully present his claims. He
argues that in his August 2016 motion to amend (Dkt #25), he put
the Court on notice that he wanted to clarify the grounds for his
coram nobis application, which were that the prosecutor suborned
perjury and withheld Brady material. Petitioner contends that the
Court was “on notice” that the facts were stated incorrectly, and
in a different manner than he had raised them in state court.
Accordingly to Petitioner, the Court issued its November 2016
decision on an incomplete record and denied him his due process
rights.
As an initial matter, it appears that this claim is belied by
the record. The Court did specifically address the merits of
Petitioner’s Brady and perjured testimony claims in its November
2016 decision and order. (See Dkt #32, pp. 4-6). Moreover, the
Court did not find them to be unexhausted based on any failure of
Petitioner to present the factual and legal bases for these claims
to the state courts.
Furthermore, Petitioner did not make this motion in a timely
fashion. As noted above, the Second Circuit has held that “relief
11
under clause (6) is available only when the movant acts in a timely
fashion . . . .” Cirami, 563 F.2d at 32.
In addition, Petitioner cannot properly rely on Rule 60(b)(6)
because
the
record
lacks
any
evidence
of
“extraordinary
circumstances” or “extreme hardship.” As Respondent points out,
when the Court granted the stay initially in March 2014, Petitioner
was ordered to return within 30 days of his effort at exhaustion of
his ineffective assistance claims and file a motion to vacate the
stay and to reinstate the ineffective assistance claims. Instead,
on January 15, 2015, he filed another motion to vacate alleging
perjury by prosecution witnesses, ineffective assistance of trial
counsel, and prosecutorial misconduct—the same claims raised in his
earlier applications for writs of error coram nobis and to vacate
the judgment pursuant to New York Criminal Procedure Law § 440.10
motion. Reviewing the chronology of this matter, it is apparent
that Petitioner had more than ample opportunity to ascertain that
he
had
completely
presented
all
of
his
supporting
factual
allegations and legal arguments to this Court, in the same fashion
that he had presented them to the state courts. His attempt to pass
this
responsibility
onto
the
Court
is
unavailing.
In
short,
Petitioner’s second ground for relief is without merit.
III. Motion to Appoint Counsel
Petitioner’s request for appointment of counsel at public
expense is governed by Hodge v. Police Officers, 802 F.2d 58 (2d
12
Cir.
1986),
and
its
progeny.
In
Hodge,
the
Second
Circuit
instructed that in deciding whether to appoint counsel, “the
district
judge
should
first
determine[,]”
as
a
“threshold
requirement,” “whether the indigent’s position seems likely to be
of substance. . . .” Id. at 62. Here, the petition has been denied
by this Court, certificates of appealability were denied both by
this Court and the Second Circuit, and Petitioner’s appeal was
dismissed by the Second Circuit. Petitioner’s motion to vacate,
although pro se, was extensively briefed and supported by exhibits.
Nonetheless, it is meritless, and it is being dismissed as such.
Appointment of pro bono counsel in the present case would be an
abuse of this Court’s discretion under Hodge.
IV.
Conclusion
For the foregoing reasons, Petitioner’s motion to vacate is
denied, and his motion to appoint counsel is denied. The Court
declines to grant a certificate of appealability because Petitioner
has
not
made
a
substantial
showing
of
the
denial
of
constitutional right, see 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
June 4, 2018
Rochester, New York.
13
a
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?