Opinion
99-CV-1085 (AT) (RWL)
12-28-2022
ANGEL DIAZ, Petitioner, v. STACIE BENNETT, Acting Superintendent Of Sullivan Correctional Facility, sub nom., Respondent.
AMENDED REPORT & RECOMMENDATION TO HON. ANALISA TORRES: MOTION TO VACATE JUDGMENT
This Amended Report and Recommendation amends the one entered on October 25, 2022 at Dkt. 34. The purpose of amendment is to address an additional submission from Petitioner at Dkt. 25, although it does not change the outcome.
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
On April 16, 2001, judgment was entered denying Petitioner Angel Diaz's petition for habeas corpus. Now, more than two decades later, Diaz, proceeding pro se, has filed a motion for relief from the judgment pursuant to Federal Rule of Civil Procedure 60(b)(6). Diaz's motion comes far too late, raises arguments that could and should have been raised when Diaz's petition was first brought, and does not present extraordinary circumstances necessary to support a motion for relief under Rule 60(b). Diaz's motion therefore should be DENIED.
Background
A. State Court Proceedings
Following a jury trial, Diaz was convicted of murder, robbery, burglary, and conspiracy in New York Supreme Court, Bronx County. On August 15, 1990, the trial court sentenced Diaz to an aggregate sentence of 38 1/3 years to life imprisonment.
On direct appeal, Diaz raised four issues (the “direct appeal issues”): (1) Diaz's absence during a side bar examination; (2) insufficient evidence that police notified Diaz's mother or family immediately after arrest as required for arrest of juveniles; (3) insufficient evidence to establish probable cause for arrest; and (4) introduction into evidence of three graphic and gruesome crime scene photos. (Petition ¶ 9(d) and supplemental page.) In an opinion dated July 28, 1994, the appellate court discussed and rejected each of the four issues raised by Diaz. People v. Diaz, 206 A.D.2d 314, 615 N.Y.S.2d 6 (1st Dep't 1994). The Court of Appeals denied leave to appeal on April 25, 1995. (Affidavit of Jean Joyce dated Sept. 24, 1999 (“Joyce Aff.,” Dkt. 7) Ex. 5.)
“Petition” refers to Diaz's petition for habeas corpus file-stamped December 28, 1998. (Dkt. 1.) Although received by the Court's Pro Se Office at that time, the Petition received a 1999 docketing number.
In a collateral post-conviction challenge at the state level, Diaz moved to vacate his conviction on grounds separate from those addressed in his direct appeal. Specifically, his motion raised three issues: (1) the prosecution's failure to disclose evidence affecting witness credibility; (2) ineffective assistance of counsel; and (3) illegal consecutive sentences. (Petition ¶ 11(a)(3); Joyce Aff. Ex. 6.) The trial court denied the motion as procedurally barred because the petitioner could have raised those issues on direct appeal but failed to do so. (Joyce Aff., Ex. 8.) On September 2, 1998, the Appellate Division denied leave to appeal. (Joyce Aff., Ex. 11.)
B. Diaz's 1998 Habeas Petition
Diaz filed his Petition in this Court in December 1998. The Petition raised only two issues as grounds for habeas relief: (1) the prosecution's failure to disclose evidence affecting witness credibility; and (2) ineffective assistance of counsel.(Petition ¶ 12(A)-(B).) Diaz “X”ed out the additional blank spaces to identify any additional grounds. (Petition ¶ 12(C)-(D).) Diaz did not include any of the direct appeal issues - side bar exclusion, failure to notify family, lack of probable cause, and admission of graphic photos - as grounds for his petition. (Petition ¶ 12.)
The Petition directs the petitioner to “[s]tate concisely every ground on which you claim that you are being held unlawfully. ... Caution: ... If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date.” (Petition ¶ 12.)
In opposition, Respondent identified as being at issue only the two issues that Diaz had raised in his Petition. (Joyce Aff. ¶ 14.) In reply, Diaz addressed only those same two issues and made no mention of the four direct appeal issues. (Affirmation In Reply To Respondent's Affidavit In Opposition, attaching Reply Memorandum Of Law (Dkt. 12).) On March 2, 2001, Magistrate Judge Francis issued a Report and Recommendation to deny the Petition (the “2001 R&R”). (Affidavit of Angel Diaz dated June 21, 2022 Ex. A, Dkt. 23.) Unsurprisingly, the 2001 R&R addressed only the two grounds raised by Diaz in his Petition. Diaz filed objections to the 2001 R&R and did not mention anything about the four direct appeal issues. (Dkt. 15.) On April 12, 2001, District Judge Batts adopted the R&R in full, overruling Diaz's objections and denying the Petition, and judgment was entered on April 16, 2001 (the “2001 Judgment”). (Dkts. 16,17.)
Diaz filed a notice of appeal on May 14, 2001. (Dkt. 18.) The Second Circuit summarily dismissed the appeal “because the appellant has not made a substantial showing of the denial of a constitutional right." (Dkt. 20 (internal quotation marks omitted).)
Nineteen years later, Diaz sought leave from the Second Circuit to file a successive habeas petition, primarily based on a 2012 Supreme Court decision. (See Dkt. 21.) The issues raised were the legality of Diaz's sentence and Diaz's claim of giving a coerced confession. (See id.) On January 26, 2021, the Second Circuit denied the motion because Diaz's petition failed to make a prima facie showing of the statutory requisites for filing a successive petition. (Id.)
C. The Instant Motion
Having had his bid for a successive petition denied, Diaz next filed the instant motion on June 24, 2022. (Dkt. 22.) Although his motion papers are not a model of clarity, liberally construed, they argue that the 2001 Judgment denying his Petition should be vacated pursuant to Rule 60(b)(6) because the 2001 R&R and 2001 Judgment do not address any of the four direct appeal issues. Diaz asserts that the habeas court made a mistake of law by failing to reach the merits of those four issues.
On August 24, 2022, Diaz filed a letter providing further argument in support of his motion and again addressing the four direct appeal issues. (Dkt. 25.) In addition, Diaz also addressed the failure-to-disclose issue raised in his state court collateral proceeding. (Id. at 19-23.)
The Court has determined that it has sufficient information on which to render this Report and Recommendation without a response from Respondent.
Discussion
The motion should be denied for three reasons. First, it is time-barred. Second, had he wanted to seek relief based on any of the four direct appeal issues, Diaz could and should have raised them in the Petition. Third, Diaz has not presented the Court with extraordinary circumstances as required for relief under Rule 60.
A motion for relief from a final judgment or order may be made based on any of six grounds: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence could not have discovered in time to move for a new trial; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied or is based on an earlier judgment that has been reversed or vacated; and (6) “any other reason that justifies relief.” Rule 60(b). A motion for relief from a judgment or order, however, pursuant to Rule 60 “must be made within a reasonable time - and for reasons (1), (2) and (3) no more than a year after the entry of judgment or order.” Rule 60(c)(1); accord Maldonado v. Local 803 International Brotherhood of Teamsters Health & Welfare Fund, 490 Fed.Appx. 405, 406 (2d Cir. 2013).
Diaz styles his motion as one based on the Rule 60(b)(6) catchall, which is not subject to the one-year deadline. “In considering whether a Rule 60(b)(6) motion is timely, [the court] must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay.” Flemming v. New York, 423 Fed.Appx. 64, 65 (2d Cir. 2011); see also Carbone v. Cunningham, 857 F.Supp.2d 486, 488 (S.D.N.Y. 2012) (applying same standard in habeas context); Stevens v. Schneiderman, No. 05-CV-10819, 2011 WL 6780583, at *6 (S.D.N.Y. Dec. 23, 2011) (same). Under that standard, the lapse of time in filing the instant motion - two decades after the 2001 Judgment - is far from reasonable. If for no other reason that is because Diaz had all the information he needed before and immediately after the 2001 Judgment. The premise of Diaz's motion is that the habeas court made a mistake by overlooking the four issues raised on direct appeal. Diaz knew at the time he first saw the 2001 R&R and the Court's adoption of it that neither addressed any of the four direct appeal issues. That is selfevident from the R&R itself.
Had Diaz wanted to, he easily could have brought to the Court's attention the omission of any discussion of the four direct appeal issues. Indeed, Diaz filed objections to the R&R without mentioning the R&R's omission of those issues. Nor did Diaz file (until now) a Rule 60 motion after the 2001 Judgment issued, even though he would have known that in adopting the R&R and entering judgment, the District Court did not mention any of the four direct appeal issues. In those circumstances, and considering the interest in finality of judgments, the passage of 20 years hardly can be considered reasonable.
The same conclusion applies to Diaz's failure-to-disclose issue. Although that issue was raised in Diaz's 1998 Petition and the Court's decisions in the 2001 R&R and 2001 Judgment, the passage of 20 years since before seeking relief pursuant to Rule 60 is far from reasonable. See Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (three and a half years after judgment denying habeas petition was not reasonable time to bring Rule 60(b)(6) motion); Griffin v. Kirkpatrick, No. 08-CV-886, 2022 WL 2758003 at *3 (W.D.N.Y. March 25, 2022), R&R adopted, 2022 WL 2207178 (W.D.N.Y. June 21, 2022) (ten year period was not a reasonable time where “petitioner was aware of the denial when this Court rejected his habeas petition in December of 2010 and could have raised any such arguments in a Rule 60(b)(6) motion filed promptly at that time”); Carbone, 857 F.Supp.2d at 488 (denying motion to vacate under Rule 60 where motion was filed more than four years after entry of the judgment denying habeas relief and noting that “[c]ourts in the Second Circuit have routinely held that shorter periods of time are unreasonable”).
In support of the instant motion, Diaz submitted two recent news articles about cases in which defendants were released from prison after many years based on misconduct of police detectives, including one who also was involved with Diaz's case. (See Dkt. 25 at Ex. A, B.) Neither article, however, indicates any misconduct in Diaz's case. And to the extent Diaz seeks to rely on the information in the articles as new evidence, his motion is foreclosed by the one-year time limit for seeking relief based on newly discovered evidence. Rule 60(c)(1).
The second reason that Diaz's motion should be denied is Diaz's failure to raise the direct appeal issues as grounds for his habeas petition. Any reading of Diaz's petition shows that he made a conscious decision not to raise the direct appeal issues. His petition sets out Diaz's appeals of and collateral challenges to his conviction. In doing so, he identified the specific issues raised. Yet when asked to identify the specific grounds serving as the basis for his request for habeas relief, Diaz listed and particularized only the grounds raised in his collateral challenge; he did not include any of the four direct appeal issues. Moreover, Diaz emphasized his limiting of the grounds for his petition by affirmatively X-ing out the blank sections that provided an opportunity to list any additional grounds. And had Diaz inadvertently omitted the four direct appeal issues from his petition, that would have become readily apparent when the Respondent's opposition expressly identified only the two collateral attack issues. Yet Diaz did not raise any such concern then or when he filed objections to the R&R.
Having affirmatively failed to include the four direct appeal issues as grounds for his petition, Diaz is foreclosed from raising them now. Indeed, he would have been foreclosed from raising those grounds for the first time in his reply in support of his Petition or in objections to the R&R. See Clemmons v. Lee, No. 13-CV-4969, 2021 WL 6750664, at *9 n.16 (S.D.N.Y. Oct. 28, 2021) (“a habeas petitioner cannot raise a federal claim for the first time on reply. See Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the United States District Courts (stating that a habeas petition ‘must ... specify all the grounds for relief available to the petitioner')”), R&R adopted, 2022 WL 255737 (S.D.N.Y. Jan. 27, 2022); Read v. Superintendent Mr. Thompson, No. 13-CV-6962, 2016 WL 165716, at *11 (S.D.N.Y. Jan. 13, 2016) (petitioner's failure to raise claims in petition forecloses raising those claims in objecting to Magistrate Judge Report and Recommendation).
The proper path for a habeas petitioner asserting claims that could have been but were not raised in their first petition is to file a successive habeas petition. James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002) (“a subsequent petition is ‘second or successive' when it raises a claim that was, or could have been, raised in an earlier petition”). But as noted earlier, the Second Circuit already has rejected Diaz's attempt to file a successive petition, albeit one based on claims not asserted here. For present purposes, the Court assumes, but does not decide, whether Diaz's instant motion is properly brought under Rule 60(b). “[A] claim that seeks to add new grounds for habeas relief or that attacks the federal court's previous resolution of a habeas claim on the merits can only be raised in successive habeas petition and may not be asserted on a Rule 60(b) motion. Conversely, a motion is properly brought under Rule 60(b) when it merely asserts that a previous ruling on a habeas petition which precluded a merits determination was in error - for example, a denial for such reasons as failure to exhaust, procedural default, or statute of limitations bar.” Griffin v. Kirkpatrick, 2022 WL 2758003 at *4 (internal quotation marks, citations, and brackets omitted). Diaz's motion is premised on the argument that the federal habeas court mistakenly did not address the merits of certain claims related to the state proceedings and therefore arguably “relates to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial.” Rodriguez, 252 F.3d at 199. On the other hand, by omitting the direct appeal issues from his Petition, Diaz did not even present them to the district court for consideration on the merits.
The third reason that Plaintiff's motion should be denied is that “[r]elief under Rule 60(b)(6) is appropriate only in cases presenting extraordinary circumstances.” Rodriguez, 252 F.3d at 201; accord Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 2649 (2005). Grounding a Rule 60 motion on the habeas court's purported legal mistake of omitting consideration of issues that Plaintiff did not raise as grounds for his habeas petition certainly does not constitute extraordinary circumstances. Nor does rearguing the issue of failure-to-disclose, which was thoroughly addressed in the 2001 habeas proceedings.
Conclusion
For the foregoing reasons, Plaintiff's motion for relief from the 2001 Judgment is without merit. Petitioner's arguments, to the extent not addressed above, have been considered by the Court and found to be without merit. Accordingly, I recommend that the motion be DENIED.
Procedure For Filing Objections And Preserving Right To Appeal
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Criminal Procedure, the parties shall have fourteen (14) days to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Analisa Torres, 500 Pearl Street, New York, New York 10007, and to Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.