Stuyvesant v. Conway

• Decision Date: 20 January 2023
• Docket Number: 1:03-CV-03856 (JLR)
• Parties: CURTIS VAN STUYVESANT, PETITIONER, v. JAMES CONWAY, RESPONDENT.
• Court: U.S. District Court — Southern District of New York

CURTIS VAN STUYVESANT, PETITIONER, v. JAMES CONWAY, RESPONDENT.

No. 1:03-CV-03856 (JLR)

United States District Court, S.D. New York

January 20, 2023

MEMORANDUM OPINION AND ORDER

JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE

On October 5, 2022, Petitioner Curtis Van Stuyvesant (“Petitioner”), proceeding pro se, filed three motions under Federal Rule of Civil Procedure (“Rule”) 60(b), Rule 1, and 28 U.S.C §§ 455(a), 1404(a), requesting various forms of relief in this previously dismissed habeas corpus action. ECF Nos. 82, 84, & 86. For the reasons stated below Petitioner's motions are DENIED.

BACKGROUND

In 1999, Petitioner was convicted in New York Supreme Court of among other things, various counts of fraud and larceny. He filed a petition for habeas corpus on March 29, 2003. ECF No. 2. Judge Freeman issued an extensive Report and Recommendation, recommending denial of the petition on July 11, 2007. ECF No. 24. Judge Kaplan adopted the Report, overruling Petitioner's objections, on September 10, 2007. ECF No. 30. Petitioner filed a Rule 60(b) motion on October 6, 2008, which the Court denied, and several motions seeking reconsideration in December 2008, which the Court also denied on January 6, 2009 and February 24, 2009. ECF Nos. 37-38, 40-43. Petitioner moved before the Second Circuit for a certificate of appealability on March 2, 2009; the motion was denied and the appeal was dismissed on July 16, 2009 because Petitioner failed to show that “(1) jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the Rule 60(b) motion, states a valid claim of the denial of a constitutional right.” ECF No. 51 (quoting Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (per curiam)). Petitioner then filed another Rule 60(b) motion and a motion for reconsideration on November 23, 2009. ECF Nos. 52, 53. Judge Freeman issued a Report and Recommendation recommending denial of both motions on March 15, 2010.

ECF No. 55. Judge Kaplan adopted the Report on April 27, 2010. ECF No. 60. Petitioner appealed again (ECF No. 61), and the Second Circuit again denied Petitioner a certificate of appealability and dismissed his appeal. ECF No. 64. On March 7, 2016, Petitioner filed another Rule 60(b) motion, which the Court denied on March 11, 2016. ECF Nos. 65, 67. On the same basis as its previous dismissals, the Second Circuit denied Petitioner's request for a certificate of appealability and dismissed his appeal of the March 11, 2016 order on June 28, 2018. ECF No. 73. On March 1, 2022, Petitioner filed a motion for a speedy adjudication of his Rule 60(b) motion and expeditious disclosure of discovery under Rule 1, which the Court denied because there was no outstanding Rule 60(b) motion or discovery. ECF No. 74. Petitioner appealed again, and the Second Circuit denied his motion for a certificate of appealability and dismissed his appeal on September 20, 2022. ECF No. 81.

On October 5, 2022, Petitioner once again came before the Court with a series of motions. Petitioner filed (i) a motion under Rule 60(b)(2), (3), (4), (5), and (6) (ECF Nos. 86, 87), (ii) a motion for speedy adjudication of his Rule 60 motion and expeditious discovery under Rule 1 (ECF No. 82, 83), and (iii) a motion under 28 U.S.C. § 1404 requesting a change of venue to the “United States District Court for the Washington District of Columbia”^[1]and for the recusal of the United States District Court for the Southern District of New York and the Second Circuit Court of Appeals under 28 U.S.C. § 455(a) (ECF No. 84, 85). The case was transferred to the undersigned on November 7, 2022.

DISCUSSION

I. Rule 60(b) Motion

Petitioner filed a motion seeking relief under Rule 60(b)(2), (3), (4), (5), and (6). ECF No. 86. Rule 60(b) provides that a court may relieve a party from a final 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 (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(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).

Setting aside the ad hominem attacks on the judges and clerks involved with this case, Petitioner's 78-page, 405 paragraph affidavit filed in support of his Rule 60 motion essentially argues that Judge Freeman and Judge Kaplan wrongly decided his original habeas petition in 2007 and improperly denied his subsequent Rule 60(b) motions. Petitioner raises numerous arguments concerning his underlying conviction including issues regarding due process and the right to counsel. See, e.g., ECF No. 87 ¶¶ 189-90, 191-93, 229-35. Petitioner also claims that Judge Freeman and Judge Kaplan purposefully avoided deciding Petitioner's arguments on the merits, which constitutes fraud and obstruction of justice. See, e.g., id. ¶ 7, 10, 66-67. Petitioner argues that the Court should grant his motion due to the fraud of a litany of individuals including Judge Freeman, Judge Kaplan, and the Clerk of Court of the Second Circuit. See, e.g., id. ¶¶ 10, 11, 135-36, 140-41.

Petitioner's Rule 60 motion fails for several reasons. First, the motion is untimely. A motion under Rule 60(b)(2) and (3) must be brought “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). Since the habeas corpus judgment by Judge Kaplan from which Petitioner is in part seeking relief was issued in 2007 (ECF No. 30), Petitioner's motion under Rule 60(b)(2) and (3) filed in 2022 - fifteen years later - is untimely. See Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (affirming district court decision to deny Rule 60(b)(3) motion to reinstate habeas petition which was brought three and a half years after final judgment); Wyche v. Advanced Drainage Sys., Inc., 332 F.R.D. 109, 116 (S.D.N.Y. 2019) (barring motion under Rule 60(b)(2) that was brought 20 months after final judgment); see also ECF No. 87 at ¶¶ 21, 66, 124, 126-28.^[2]

Motions under Rule 60(b)(4), (5) and (6) must be made within a “reasonable time” after the entry of judgment from which the Petitioner is seeking relief. Fed.R.Civ.P. 60(c). While there is no strict rule on what constitutes a reasonable time, as Petitioner is seeking relief from the 2007 dismissal of his habeas petition, the 15-year delay is certainly not a “reasonable time.” Rodriguez, 252 F.3d at 201 (denying Rule 60(b)(6) motion unreasonably brought three and a half years after judgment); Carbone v. Cunningham, 857 F.Supp.2d 486, 488 (S.D.N.Y. 2012) (denying Rule 60(b)(4) petition brought four years after habeas petition was denied when petitioner did “provide any reason for the delay”). And Petitioner has provided no “mitigating circumstances” to excuse the delay. Kellogg, 269 F.3d at 104 (finding delay of twenty-six months unreasonable and incarceration was not a mitigating circumstance); Lee v. Marvel Enterprises, Inc., 765 F.Supp.2d 440, 449 (S.D.N.Y. 2011) (“There are no ‘mitigating circumstances' presented to justify SLMI's five-year delay in seeking reconsideration of the Orders.”).^[3]

Even if his Rule 60(b) motion was timely, Petitioner's motion fails on the merits. First, it primarily challenges the underlying state criminal proceedings. In the context of habeas petitions, a petitioner may only raise a Rule 60(b) motion to “attack[] the integrity of the habeas proceeding and not the underlying criminal conviction.” Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004); Pena v. United States, 859 F.Supp.2d 693, 697 (S.D.N.Y. 2012) (denying Rule 60(b) motion when “[t]hrough the guise of “liberal construction,” [petitioner] [was] merely attacking his criminal conviction”); Rodriguez v. United States, 164 F.Supp.3d 561, 567 (S.D.N.Y. 2016) (holding petitioner's recycled arguments from his direct criminal appeal and habeas petition beyond the scope of Rule 60(b) since they were “attack[ing] this Court's previous resolution of a claim on the merits”) (quotation omitted).

An attack on the integrity of the underlying criminal conviction is instead a second or successive habeas petition and the Court cannot consider second or successive habeas petitions without leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A). While Petitioner frequently referenced the requirement that he is not bringing a successive habeas petition, much of his motion falls into a familiar pattern of arguing the merits of his underlying state convictions (e.g., due process concerns) to criticize the outcome of Judge Freeman's Report and Recommendation and Judge Kaplan's Orders. See e.g., ECF. No. 83 ¶¶ 42, 47, 66. Despite the framing of this request as a Rule 60(b) motion, the Court keeps in mind its “obligation to characterize the request for relief properly, regardless of the label that the petitioner applies.” Cruz v. Smith, No. 05-cv-10703 (LTS) (DCF), 2022 WL 4951539, at *2 n.1 (S.D.N.Y. Oct. 4, 2022) (citation and quotations omitted) (holding the petitioner's Rule 60(b) motion improperly challenged the merits of his underlying state criminal proceedings).

When a court finds that a Rule 60(b) motion attacks the underlying conviction, a district court may transfer the petition to the United States Court of Appeals for the Second...