Opinion
04-CV-3402 (RO), 01-CR-968.
April 26, 2006
MEMORANDUM AND ORDER
Before me is pro se petitioner/defendant Hector Gomez's motion for reconsideration, pursuant to Rule 60(a) and (b)(1) of the Federal Rules of Civil Procedure, of this Court's Memorandum and Order dated July 7, 2005 — annexed hereto — denying Gomez's motion to vacate and request for re-sentencing, due to lack of subject-matter jurisdiction. In his present motion, filed December 22, 2005, petitioner claims that he was never informed of my decision, that said Memorandum and Order was never sent to him by the clerk's office, and therefore, that he should be relieved from the judgment.
Rule 60(a) allows for the correction of clerical mistakes, as follows: "Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders." Fed.R.Civ.P. 60(a). Rule 60(b) sets forth the grounds upon which a court, in its discretion, can rescind or amend a final judgment or order, including: "(1) mistake, inadvertence, surprise, or excusable neglect." Fed.R.Civ.P. 60(b)(1).
This Order bears the mistaken filing date of June 8, 2005 on the criminal docket sheet.
The motion I denied in July was posited as Gomez's "appeal of the memorandum dismissing his first petition, reiterating his prior claims and again seeking re-sentencing." I denied this on the procedural ground that the motion was not properly before me, having found once already (in an Order dated March 31, 2004) that petitioner's claims lacked merit. 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive application [for habeas corpus relief] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."); 28 U.S.C. § 2255 (second or successive Section 2255 motions may not be filed in the district court until they have been certified "by a panel of the appropriate court of appeals."); see also, White v. Nash, 67 Fed. Appx. 631, 634 (2d Cir. 2003) (district court has no jurisdiction to decide second or successive habeas petition on the merits); Santiago v. United States, 64 Fed.Appx. 281 (2d Cir. 2003).
Petitioner's present motion for relief from judgment is denied in its entirety. However, to correct the jurisdictional defect, Gomez's second petition to vacate and request for resentencing (his "appeal") is hereby transferred to the United States Court of Appeals for the Second Circuit for consideration as an application to file a second or successive motion for habeas relief under 28 U.S.C. § 2255 ¶ 8. Corrao v. United States, 152 F.3d 188, 190-91 (2d Cir. 1998) (holding that a district court must transfer uncertified second or successive habeas petitions to the appropriate court of appeals); accord Liriano v. United States, 95 F.3d 119, 121-23 (2d Cir. 1996) (per curiam).
So Ordered.
Final judgments are not "lightly reopened," and Rule 60(b) "is invoked only upon a showing of exceptional circumstances."Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986) (citations omitted). There must be "highly convincing" evidence supporting the motion, and the movant must show: (1) good cause for failing to act sooner; and (2) that granting the motion will not impose an undue hardship on the other parties. Kotlicky v. U.S. Fidelity Guaranty Co., 817 F.2d 6, 9 (2d Cir. 1987) (citations omitted). This heavy burden for securing relief from final judgments is imposed equally upon pro se litigants as well as those represented by counsel. See Williams v. New York City Dep't of Corrections, 219 F.R.D. 78, 84 (S.D.N.Y. 2003). Petitioner Gomez falls far short of meeting his burden. The alleged failure to be timely notified of this court's denial of his motion does not constitute, as Gomez has suggested, a "defect in the integrity of the federal habeas proceedings" warranting drastic relief under Rule 60(b). Gonzalez v. Crosby, 125 S.Ct. 2641, 2648 (2005).
Petitioner asks this Court to consider Rule 60(a) as an alternative basis for granting him relief. In this, Gomez misconstrues and misapplies the Rule, the purpose of which is to address clerical mistakes that appear on the face of a court's opinion or which otherwise affect the accurate intentions of the court. See Matura v. United States, 189 F.R.D. 86, 90 (S.D.N.Y. 1999) (citations omitted). Here, petitioner asserts that this court's order, which bears no mistakes on its face but which was given a mistaken filing date on the criminal docket sheet, was not forwarded to him by the clerk's office in a timely fashion, and that this was a mistake justifying relief from judgment. Because the opinion that I issued accurately reflected this Court's intention and its unavoidable lack of subject-matter jurisdiction, the mistake that Gomez asserts is not a "clerical error" within the meaning of Rule 60(a), and accordingly, petitioner may not rely on that subsection as a basis for relief.
Hector Gomez was sentenced on his guilty plea on April 29, 2003. He instigated a collateral attack on his 168 month sentence ten months later claiming ineffective counsel, an unconstitutional sentence, and that he was unlawfully denied Jencks Act material ( 18 U.S.C. § 3500). Gomez requested that that he be re-sentenced in light of these points. In an order dated March 31, 2004, this court denied this petition in its entirety on the grounds that each claim lacked merit. Before me now is a second petition for a writ of habeas corpus, which Gomez filed on April 31, 2004, which he titles an appeal of the memorandum dismissing his first petition, reiterating his prior claims and again seeking re-sentencing. The second motion is, ab initio, not before me under 28 U.S.C.A. § 2244(b)(3)(A).
Even on the merits, Mr. Gomez now further argues in his second petition that his lawyer took advantage of his language barrier to get him to pleading guilty. This argument has no factual support. A Spanish interpreter was present when he entered his guilty plea. I directly asked him, through the interpreter, if he understood the consequences of his pleading guilty, and he not only replied affirmatively, but also said he was "very satisfied" with his lawyer.
As observed above, the court is precluded from entertaining a second petition for a writ of habeas corpus without the respective appeals court first authorizing the petition. 28 U.S.C.A. § 2244(b)(3)(A). Because, Mr. Gomez has made no such application and had it granted, I have no have no power to consider it.
Accordingly, the motion is denied in its entirety.
So Ordered.