Hibbert v. Lempke

Filing 17

ORDER denying 16 Petitioner's Motion for Relieving Final Judgment with prejudice consistent with this Order. Signed by Hon. Michael A. Telesca on 12/17/15. Copy of Order sent by first class mail to Petitioner. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
EVERTON HIBBERT,
Petitioner,

DECISION AND ORDER
No. 6:14-cv-06424-MAT

-vsJOHN LEMPKE, Superintendent of
the Wende Correctional
Facility,
Respondent.

I.

Introduction
On August 24, 2015, this Court issued a Decision and Order

(Dkt #12) denying the request for a writ of habeas corpus by
Everton Hibbert (“Petitioner”). The Court dismissed the habeas
petition with prejudice and denied a certificate of appealability.
Judgment was entered on August 25, 2015 (Dkt #13).
On September 15, 2015, Petitioner filed his Notice of Appeal
to the Second Circuit (Dkt #14) of this Court’s Judgment. On
December 9, 2015,1 Petitioner filed a Motion for Relieving Final
Judgment (Dkt #16), seeking to have this Court vacate its judgment
pursuant to Rule 60(b)(1) and (6) of the Federal Rules of Civil
Procedure.

1

Pursuant to the prison mailbox rule, see Noble v. Kelly, 246
F.3d 93, 97-98 (2d Cir. 2001), the Court considers the dates of
filing to be the dates that Petitioner signed the respective
pleadings.

II.

Discussion
While the Federal Rules of Civil Procedure do permit the

district court to “relieve a party . . . from a final judgment[,]”
FED. R. CIV. P. 60(b), the Second Circuit “has repeatedly held that
the docketing of a notice of appeal ‘ousts the district court of
jurisdiction except insofar as it is reserved to it explicitly by
statute or rule.’” Toliver v. County of Sullivan, 957 F.2d 47, 49
(2d Cir. 1992)) (quoting Ryan v. United States Lines Co., 303 F.2d
430, 434 (2d Cir. 1962)). Here, Petitioner filed his Notice of
Appeal to the Second Circuit prior to filing his motion for relief
from judgment under Rule 60(b), thereby divesting this Court of
jurisdiction to hear his Rule 60(b) motion. See Contemporary
Mission Inc. v. United States Postal Serv., 648 F.2d 97, 107
(2d Cir. 1981) (district court properly denied plaintiff’s Rule
60(b) post-judgment motion where prior to filing that motion,
plaintiff had filed a notice of appeal; panel reasoned that “[t]he
filing of the notice of appeal divested the district court of
jurisdiction

to

entertain

the

motion[]”)

(citation

omitted).

Therefore, this Court denies Petitioner’s request for Rule 60(b)
relief and denies his motion with prejudice.
III. Conclusion
For the foregoing reasons, Petitioner’s Motion for Relieving
Final

Judgment

(Dkt

#16)

is

denied

with

prejudice.

Because

Petitioner has failed to make a substantial showing of the denial

-2-

of

a

constitutional

right,

the

Court

declines

to

issue

certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

December 17, 2015
Rochester, New York

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a