Clare v. United States
| Decision Date | 19 March 2018 |
| Docket Number | 12-cr-792-ARR,17-cv-4484-ARR |
| Parties | HOWARD CLARE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR ELECTRONIC OR PRINT PUBLICATION
Pro se petitioner Howard Clare has filed a motion under Federal Rules of Civil Procedures 59(e) and 60(b) seeking reconsideration of the denial of his petition under 28 U.S.C. § 2255. Pet'r's Clare Omnibus Mot. Pursuant to Rule 59(e) & Rule 60(b), ECF No. 119 ("Mot. for Recons."). For the reasons discussed below, petitioner's motion is denied.
In December 2013, after a four-day jury trial, Clare was convicted of various drug and weapons offenses. Verdict Sheet 1-3, Case No. 12-cr-792, ECF No. 69.1 He was then sentenced to fifteen years' imprisonment. Judgment 3, ECF No. 96. His conviction was affirmed by the Second Circuit in July 2016. United States v. Clare, 652 F. App'x 32 (2d Cir. 2016).
In July 2017, Clare filed a motion to vacate under 28 U.S.C. § 2255. Mot. to Vacate, ECF No. 110. He claimed that he had received constitutionally ineffective assistance from his trial counsel. Id. at 5-10. Specifically, he argued that his representation was constitutionally deficient because hiscounsel failed to: (1) move to dismiss Count Three of the indictment, id. at 7-8; (2) object to the allegedly erroneous verdict sheet and jury instructions, id. at 6, 6A, 9; or (3) object to the introduction of supposed propensity evidence regarding uncharged criminal acts, id. at 5. I issued an order to show cause to the government, which filed its opposition on August 21. Resp. to Pet'r's Pet. Pursuant to 28 U.S.C. § 2255, ECF No. 111 ("Opp'n Br."). Petitioner received this opposition on around August 25.Mot. for Recons. ¶ 3. On September 6, I denied the petition because I found that petitioner had failed to demonstrate that his trial counsel had acted unprofessionally. Op. & Order 1-2, ECF No. 115 ("Order"). On September 15, I received a request from petitioner for a thirty-day extension to file a reply brief. Mot. for Extension of Time 1, ECF No. 116.2 On September 22, he filed his reply brief. Traverse to Resp't's Resp. to 28 U.S.C. § 2255, ECF No. 118 ("Reply Br."). He then received a copy of the Order on September 25. Mot. for Recons. ¶ 5 & Ex. A.
On October 2, 2017, Clare filed a motion for reconsideration of the denial of his § 2255 petition. Mot. for Recons. He styled the motion as a motion for relief under Federal Rules of Civil Procedure 59(e) and/or 60(b). Id. at 1. He requested that I vacate the denial and address all issues on the merits or, in the alternative, that I consider his reply brief "as a Motion for Reconsideration." Id. at 3-4; see also Reply Br.
Petitioner makes the following arguments: First, he argues that he was denied the opportunity to reply to the government's opposition brief, in violation of his due process rights and the equitable nature of § 2255. Mot. for Recons. ¶¶ 6, 9. According to petitioner, he informed the court of his intention to file a response, "consistent with 28 U.S.C. § 2243," when he asked for an extension. Id. ¶ 4. Second, he argues that I failed to address all of the claims in his petition. Id. ¶ 7. Third, he argues that I wrongly denied him a Certificate of Appealability without advising petitioner of his responsibility to show that his claims are debatable among reasonable jurists. Id. ¶ 8. Finally, he argues that I wasincorrect in determining that, even if the propensity evidence at issue had been improperly admitted, it had not prejudiced petitioner. Id. ¶ 10.
Petitioner brings his motion for reconsideration under Rules 59(e) and/or 60(b). For the reasons discussed below, his motion is denied.
Rule 60(b)(6) permits a party to move for relief from a final judgment or order for "any . . . reason that justifies relief," provided that the motion is "made within a reasonable time." Fed. R. Civ. P. 60(b)(6), (c)(1).3 It provides a remedy only in "extraordinary circumstances." Wright, Miller & Kane, 11 Fed. Prac. & Proc. Civ. § 2857 (3d ed.) (citing Ackermann v. United States, 340 U.S. 193 (1950)); see also Gonzalez v. Crosby, 545 U.S. 524, 536 (2005) (); Rodriguez v. Mitchell, 252 F.3d 191, 200-01 (2d Cir. 2001) ().
Rule 60(b) motions are subject to § 2255's prohibition on second or successive petitions. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a claim presented in a "second or successive" § 2255 petition must be dismissed if it was presented in a prior application. See 28 U.S.C. §§ 2244(b), 2255(h). If the claim was not presented in a prior application, it still must be dismissed unless it has been certified by the court of appeals to contain "(1) newly discovered evidence that, 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 the movant guiltyof the offense" or "(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h).
The Supreme Court has held that a pleading that presents a "claim," even if "labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly." Gonzalez, 545 U.S. at 530-31. A motion "bring[s] a 'claim' if it attacks the federal court's previous resolution of a claim on the merits." Id. at 532. If, however, the motion "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings," then it should not be treated as a successive habeas petition. Id.
Although Gonzalez dealt only with petitions brought under 28 U.S.C. § 2554, id. at 529 n.3, the same logic applies to § 2255 petitions. The differences in wording between the two statutes are minor. Compare 28 U.S.C. § 2255(h) with 28 U.S.C. § 2244(b). Nor is there anything in the statutory language that suggests that the meaning of the term "successive petition" is any different under § 2255 than under § 2254. Virtually every federal court to deal with the issue has agreed. See, e.g., Gilbert v. United States, 640 F.3d 1293, 1323 (11th Cir. 2011); United States v. Buenrostro, 638 F.3d 720, 722 (9th Cir. 2011); Curry v. United States, 507 F.3d 603, 604 (7th Cir. 2007); In re Nailor, 487 F.3d 1018, 1021-23 (6th Cir. 2007); United States v. Nelson, 465 F.3d 1145, 1147-49 (10th Cir. 2006); Rodriguez v. United States, 164 F. Supp. 3d 561, 565 (S.D.N.Y. 2016); Schwamborn v. United States, 507 F. Supp. 2d 229, 240 (E.D.N.Y. 2007). But see Parke v. United States, No. 5:97-CV-526 (NPM), 2006 WL 3051775, at *3 (N.D.N.Y. Oct. 20, 2006) ().
Consistent with these principles, a district court may "dismiss part of a Rule 60(b) motion as beyond the scope of the rule if such part of the motion seeks to attack the underlying conviction while the other portion legitimately attacks the integrity of the prior habeas proceeding." Crenshaw v. Superintendent of Five Points Corr. Facility, 595 F. Supp. 2d 224, 228 (W.D.N.Y. 2009) (citing Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002)).
I dismiss the portion of petitioner's motion regarding the merits of my decision on the issue of propensity evidence as beyond the scope of Rule 60(b). That portion seeks to attack the validity of petitioner's conviction and constitutes a "claim" as described above. Relief on this issue is therefore unavailable to petitioner under Rule 60(b). The remainder of petitioner's motion falls within the scope of Rule 60(b). It must be denied, however, because petitioner has not alleged sufficiently extraordinary circumstances.
Petitioner first argues that he was denied the opportunity to reply to the government's opposition brief, in violation of his due process rights and the equitable nature of § 2255. Mot. for Recons. ¶¶ 6, 9. According to petitioner, he informed the court of his intention to file a response, "consistent with 28 U.S.C. § 2243," when he asked for an extension. Id. ¶ 4. That section provides that an applicant seeking a writ of habeas corpus "may, under oath, deny any of the facts set forth in the [government's response] or allege any other material facts." 28 U.S.C. § 2243. But § 2243 does not govern the procedure to be followed on § 2255 motions—those are subject to the Rules Governing § 2255 Proceedings. 28 U.S.C. foll. § 2255. Specifically, Rule 5 states that "[t]he moving party may submit a reply to the respondent's answer or other pleading within a time fixed by the judge." Rule 5(d), 28 U.S.C. foll. § 2255. In this case, I did not fix a time for the reply and issued my order approximately two weeks after receiving the government's opposition. I conclude, however, that petitioner was not prejudiced by my deciding his motion before receiving his reply. Although petitioner's reply elaborates on the arguments raised in his § 2255 petition, it does not present any argument that would have changed my decision. Because the outcome would have been the same had I the benefit of petitioner's reply, this does not constitute an extraordinary circumstance worthy of relief from my denial of his § 2255 petition.
Petitioner next argues that I did not address all of the claims in his § 2255 motion. Mot. for Recons. ¶ 7. Petitione...
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