Martinez v. Capra
ORDER denying 33 Motion for Leave to Appeal; denying 33 Motion for Reconsideration ; denying 36 Motion to Appoint Counsel. Copy of Decision and Order sent by First class mail to Eric Martinez. Signed by Hon. Michael A. Telesca on 2/28/17. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ERIC X. MARTINEZ,
DECISION AND ORDER
-vsMICHAEL CAPRA, Superintendent, Sing
Sing Correctional Facility,
Proceeding pro se Eric X. Martinez (“Petitioner”) filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On May 9, 2016, the Court issued a Decision and Order (Dkt #28)
denying the petition and declining to issue a certificate of
May 10, 2016 (Dkt #30). Petitioner sent a letter to the Court dated
January 21, 2017, which the Court construed as a Motion for Leave
Reconsideration Motion”) of the Decision and Order denying his
Memorandum of Law in Opposition (Dkt #34) to Petitioner’s Motion
for Reconsideration. Petitioner sent a letter dated February 5,
2017, to the Court requesting an attorney and, should the Court
appoint an attorney, an extension of time to file a reply to
Respondent’s opposition brief. The Court has construed this as a
Motion for Appointment of Counsel and a Conditional Request for
discussed below, all of Petitioner’s motions are denied with
Motions for reconsideration are governed by Rule 59(e) of the
Federal Rules of Civil Procedure (“Rule 59(e)”) and are frequently
No. 904CV0084LEKGJD, 2005 WL 1176567, at *1 (N.D.N.Y. May 4, 2005)
(Section 2254 petitioner filed motion for reconsideration based on
new evidence) (citation omitted). However, the most recent version
of Rule 59(e),1 which was in effect at the time of Petitioner’s
judgment, contains a 28-day time-limit on filing motions for
reconsideration.2 The deadline under Rule 59(e) is “inflexible[.]”
F. Supp.2d 224, 227 (W.D.N.Y. 2009). Therefore, Petitioner’s motion
cannot be brought under the authority of Rule 59(e) because it is
untimely under that rule. See id.
“A motion to alter or amend a judgment must be filed no later than
28 days after the entry of the judgment.” FED. R. CIV. P. 59(e).
Prior to December 1, 2009, motions under Rule 59(e) had to be filed no
later than 10 days after the entry of judgment.
Rule 59(e) motions as motions to vacate the judgment pursuant to
(“Rule 60(b)”). See, e.g., DiGirolamo v. United States, 279 F.
App’x 37, 39 (2d Cir. 2008) (unpublished opn.) (Section 2255
petitioner’s filing “cannot be construed as a Rule 59(e) motion
because it was not filed within ten days of the district court’s
original opinion, but should be treated rather as a motion for
relief from a judgment or order under Rule 60(b)(6).”) (citing
Feldberg v. Quechee Lakes Corp., 463 F.3d 195, 198 (2d Cir. 2006)
Rule 60(b) provides a party with the opportunity to seek
relief from a prior judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect; (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
. . ., misrepresentation, or other misconduct by an
opposing party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged . .
.; (6) any other reason that justifies relief.
FED. R. CIV. P. 60(b)(1)-(6). “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.” FED. R. CIV. P. 60(c)(1). In addition to filing in
a reasonably timely manner, the moving party must demonstrate
“extraordinary circumstances” or “extreme hardship.” PRC Harris,
Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983).
Petitioner has not attempted to demonstrate “extraordinary
circumstances” or “extreme hardship.” Indeed, he has not asserted
any facts or legal arguments to justify vacating the judgment
against him, but instead simply asks if he can “bring [his case]
again to [this] court for new federal arguments as a fact and the
grounds of a federal case arguments in a writ habeas corpus
granting relief under Rule 60(b), and accordingly his motion is
(2d Cir. 2001) (Section 2254 petitioner filed Rule 60(b) motion
three and one-half years from the date judgment was entered; court
found that was not a “reasonable time” and, even if motion were
timely filed, “it would still fail, because ‘[r]elief under Rule
60(b)(6) is appropriate only in cases presenting extraordinary
circumstances,’ and [the petitioner] has failed to allege any such
circumstances”) (quotation omitted).
Late Leave to Appeal
motion as also including a request for permission to file a late
notice of appeal, as Petitioner states, “I really would like to
appeal my case to a higher court can you please allow me to
appealed . . . .”
ability to grant extensions of time to file notices of appeal. See
Endicott Johnson Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 56
(2d Cir. 1997). In a civil case such as this one, “the notice of
appeal . . . must be filed with the district clerk within 30 days
after entry of the judgment or order appealed from.” FED. R. APP. P.
4(a)(1)(A). The requirements of Federal Rule of Appellate Procedure
(“F.R.A.P.”) 4(a) are “mandatory and jurisdictional.” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per
curiam) (quotation omitted).
In a civil action in which the United States or its officer or
agency is not a party, a motion for an extension of time to file a
notice of appeal must be filed no later than 30 days after the
expiration of the 30-day period in which to file a notice of
appeal. See FED. R. APP. P. 4(a)(1)(A), (5)(A)(i). Orders and
judgments dismissing an action are to be set forth on separate
documents under Federal Rule of Civil Procedure (“F.R.C.P.”) 58(a),
and are considered entered for the purposes of F.R.A.P. 4(a) when
the judgment or order is entered in the civil docket under F.R.C.P.
79(a) and when the earlier of these two events occurs:
judgment or order is set forth on a separate document, or 150 days
have run from entry of the judgment or order in the civil docket
under F.R.C.P. 79(a). See FED. R. APP. P. 4(a)(7)(A)(ii). However,
a court “lacks [the subject matter] jurisdiction to grant any
extension motion that is not filed within [F.R.A.P.] 4(a)(5)’s
30-day ‘grace period.’” Cohen v. Empire Blue Cross & Blue Shield,
142 F.3d 116, 118 (2d Cir. 1998) (per curiam).
Here, the order dismissing the petition and the judgment in
favor of Respondent were both entered, as separate documents, on
the Court’s civil docket on May 9, 2016, and May 10, 2016,
respectively, pursuant to F.R.C.P. 79(a). Petitioner therefore had
until 30 days from May 10, 2016, to file his notice of appeal.
Thirty days from Tuesday, May 10, 2016, was Thursday, June 9, 2016.
Petitioner’s motion for an extension of time. Petitioner’s motion
was received by this Court on January 25, 2017, but his motion was
applicable to incarcerated, pro se litigants, has been extended to
the filing of notices of appeal by habeas petitioners. See Noble v.
appearing pro se satisfies the time limit for filing a notice of
appeal if he delivers the notice to prison officials within the
time specified; this “prison mailbox rule” is justified by the
litigant’s dependence on the prison mail system and lack of counsel
to assure timely filing with the court). The Court will apply the
prison mailbox rule to find that Petitioner filed his motion on
January 21, 2017, for purposes of the analysis under F.R.A.P.
4(a)(5). This was 226 days after June 9, 2016, the date it was due.
Clearly, it is untimely.
In sum, Petitioner’s motion, to the
extent it is brought under F.R.A.P. 4(a)(5), is untimely, and the
Court lacks the discretion to grant the motion. Cohen, 142 F.3d at
118 (citing, inter alia, Endicott Johnson Corp. v. Liberty Mut.
Ins. Co., 116 F.3d 53, 56 (2d Cir. 1997) (“Nor is the court
authorized to grant a motion that was filed beyond the 30–day
extension period [in F.R.A.P. 4(a)(5)].”)).
F.R.A.P. 4(a)(6) provides in relevant part that
a district court may reopen the time to file an appeal
for a period of 14 days after the date when its order to
reopen is entered, but only if all the following
conditions are satisfied:
(A) the court finds that the moving party did
not receive notice under Federal Rule of Civil
Procedure 77(d) of the entry of the judgment
or order sought to be appealed within 21 days
(B) the motion is filed within 180 days after
the judgment or order is entered or within 14
days after the moving party receives notice
under Federal Rule of Civil Procedure 77(d) of
the entry, whichever is earlier; and
(C) the court finds that no party would be
FED. R. APP. P. 4(a)(6).
“A district court lacks the discretion to grant a motion
brought under [F.R.A.P.] 4(a)(6) unless all of the requirements
listed above have been met.” Trento, 2008 WL 400921, at *2 (citing
Martinez v. Hoke, 38 F.3d 655, 656 (2d Cir. 1994) (per curiam)).
Here, Petitioner does not allege that he did not receive notice
under F.R.C.P. 77(d) of the entry of the judgment or order he seeks
to appeal. Because there is no suggestion that he did not receive
notice under F.R.C.P. 77(d) of the entry of the order dismissing
his habeas petition or the judgment in favor of the respondent, a
necessary requirement, Petitioner cannot avail himself of F.R.C.P.
4(a)(6). Relief under this section must be denied.
Appointment of Counsel
appointment of pro bono counsel because he is indigent and he “does
not know how” to litigate his case himself.
It is well settled that there is no constitutional right to
Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). The appointment
of counsel to represent a habeas petitioner lies within the court’s
discretion. See id. The factors to be considered in ruling on a
motion for pro bono counsel include the merits of the case, the
litigant’s ability to pay for private counsel, the litigant’s
efforts to obtain a lawyer, the availability of counsel, and the
litigant’s ability to perform fact-gathering and to address the
legal issues unassisted. Cooper v. A. Sargenti Co., 877 F.2d 170,
172 (2d Cir. 1986). Of these, “[t]he factor which command[s] the
most attention [is] the merits” of the litigant’s case. Id.; see
also Johnston v. Genessee Cnty. Sheriff Maha, 606 F.3d 39, 41
(2d Cir. 2010) (For the court to appoint counsel in a civil action,
the movant must first make at least “‘a threshold showing of some
Petitioner’s current application establishes none of the elements
necessary to justify appointing counsel. In particular, Petitioner
has not made, and cannot make, the threshold showing of some
Moreover, the Court found, Petitioner did not make a substantial
showing of the denial of a constitutional right for purposes of
§ 2253(c)(2). Finally, the Court has denied Petitioner’s request
for permission to file a late notice of appeal. Under these
circumstances, to grant appointment of pro bono appellate counsel
Accordingly, Petitioner’s request for appointment of counsel is
denied with prejudice.
Extension of Time to File Reply
Petitioner conditionally has requested an extension of time to
file reply papers, should the Court grant him pro bono counsel. The
Court has denied his motion for appointment of counsel, thereby
mooting his request for an extension of time.
For the foregoing reasons, Petitioner’s Motion for Leave to
appeal and/or Motion for Reconsideration (Dkt #33) is denied, and
Petitioner’s Motion for Appointment of Counsel and a Conditional
Request for Extension of Time to File Reply (Dkt #36) is denied.
The Court declines to grant a certificate of appealability.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
February 28, 2017
Rochester, New York.
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