MEMORANDUM DECISION AND ORDER

NEAL McCURN, Senior District Judge

Factual and Procedural Background

Presently before the court is a motion by petitioner, Lenworth Parke, to reopen this court's April 22, 1999 denial of his motion to vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255 based on his claim of ineffective assistance of trial counsel. Parke styles the present motion as pursuant to Fed.R.Civ.P. 60(b).

In February 1993, after a jury trial, Parke and four co-defendants were convicted of five felonies stemming from the drug-related murder of an undercover police officer. Each received a life sentence. Parke's conviction was thereafter affirmed on appeal. See United States v. Thomas, 34 F.3d 44 (2d Cir. 1994). On April 16, 1997, Parke filed a motion to vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255 based on his claims of perjury on behalf of a government witness, prosecutorial misconduct, and ineffective assistance of trial counsel. See Parke v. United States, No. 97-CV-526, 1998 WL 326762, at *1 (N.D.N.Y. Apr. 27, 1998). Parke filed a supplemental motion on August 13, 1997, which asserted the additional claim of ineffective assistance of appellate counsel. See id. Citing the prevailing view of district courts in this circuit at the time, this court denied Parke's motion and dismissed his § 2255 petition as untimely. See id. at *3. Two months later, the Second Circuit Court of Appeals rejected the prior prevailing view among the district courts upon which this court relied in denying Parke's motion. See id. at *1. citing Rose v. Artuz, 150 F.3d 97. 101-103 (2d Cir. 1998). Thus, this court reopened the matter and decided Parke's previous claims as well as an additional ground for relief. See Parke v. United States, No. 97-CV-526, 1999 WL 242637 (N.D.N.Y. Apr. 22, 1999). All of those claims were decided against Parke on the merits, including his claim of ineffective assistance of trial counsel, with which the present motion is concerned. The court denied that claim, citing Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), wherein the Second Circuit held that "where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural defect and actual prejudice resulting therefrom." See Parke v. United States, 1999 WL 242637, at *2, citing Billy-Eko, 7 F.3d at 113-114. On April 23, 2003, the Supreme Court abrogatedBilly-Eko, holding instead that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." See Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694 (2003). On May 27, 2003, Parke filed the present motion to reopen this court's April 22, 1999 order denying his § 2255 motion regarding his ineffective assistance of trial counsel claim. The United States (hereinafter, "the government") opposes.

Analysis

The government first argues that Parke is procedurally barred from bringing the present motion by the statute of limitations set forth in 28 U.S.C. § 2255. Next, the government argues that even if this court is to find that the present motion is not procedurally barred, the motion must be denied because Parke's ineffective assistance of trial counsel claim lacks merit.

In his motion papers, Parke asks this court to "reopen and vacate his § 2255 motion decision" pursuant to Fed.R.Civ.P. 60(b) and citesRodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001) for the rule that a motion filed pursuant to Rule 60(b) shall not be treated as a second or successive habeas petition when used to seek vacatur of a federal court judgment dismissing a habeas petition. See Dkt. No. 48. However, in his reply papers, Parke "adopts and incorporates by reference his previous petition in his original § 2255 Motion before the Court" and "moves this Honorable Court to grant the previously filed motion pursuant to [§ 2255]." See Dkt. No. 53.

The government fails to address the propriety of Parke having brought this motion pursuant to Rule 60(b) and instead simply argues that the motion is barred by the 1-year period of limitation set forth in § 2255. The court is now left with the task of determining the proper procedural vehicle for what appears to be Parke's request that the court vacate its April 22, 1999 order and reopen Parke's initial § 2255 petition in light of the Supreme Court's ruling in Massaro, and ultimately decide in his favor on said petition. It is important to note that this court must afford Parke, as a pro se litigant, a liberal reading of his papers, and interpret them "to raise the strongest arguments that they suggest." See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal citation and quotation omitted). Given such a reading, the present motion is either a motion to vacate this court's April 22, 1999 order pursuant to Rule 60(b) or it is a second or successive habeas petition which must be sent to the Second Circuit Court of Appeals for certification that "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."See § 2255. In any event, it is not an initial petition for habeas relief that is, as the government contends, subject to the 1-year period of limitation set forth in § 2255.

In keeping with Rodriguez and the cases that follow it, when determining whether to construe the present motion as a motion pursuant to Rule 60(b) or a second or successive petition pursuant to § 2255, "the threshold question for this Court is whether the instant motion addresses `the integrity of the federal habeas proceedings, or is instead a vehicle for filing a second or successive petition.'" See Roccisano v. United States, No. 03-CV-1459, 2003 WL 21396668, at *2 (S.D.N.Y. June 17, 2003). citing Harris v. United States, 293 F. Supp. 259, 266 (S.D.N.Y. 2003). See also Gitten v. United States, 311 F.3d 529 (2d Cir. 2002);Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001). Clearly where a mistake of law is at issue, the proper procedural vehicle to allow a court to correct said mistake is a Rule 60(b) motion.See Tarkington v. United States Lines Co., 222 F.2d 358, 360 (2d Cir. 1955). Although Parke does not specify which of the enumerated reasons set forth in Rule 60(b) he relies upon for his motion, there are two possibilities: (1) mistake, pursuant to Rule 60(b)(1), or (2) "a prior judgment upon which [the order in question] is based has been reversed or otherwise vacated" pursuant to Rule 60(b)(5). Motions pursuant to Rule 60(b)(1) must be made not more than one year after the order from which a party seeks relief was entered, and motions pursuant to Rule 60(b)(5) must be made within a reasonable time therefrom. More than four years lapsed between the entry of judgment denying Parke's § 2255 motion, and the filing of the present motion seeking relief therefrom. Admittedly, the judgment upon which this Court relied in denying Parke's § 2255 motion on ineffective assistance of trial counsel grounds was abrogated only two months prior to the filing of the present motion. See Massaro, 538 U.S. 500, 123 S.Ct. 1690; Billy-Eko, 8 F.3d 111. However, the goal of Rule 60(b) to preserve judicial economy and allow courts to timely correct erroneous judgments and prevent the wasting of energies by litigants and appeals courts would not be met by a decision from this court to grant Parke relief from its prior order in this case. See Thompson v. County of Franklin, 127 F. Supp.2d 145, 162-163 (N.D.N.Y. 2000). Further, if this court were to entertain the present motion as one pursuant to Rule 60(b), and if this court were to grant that motion, the effect would be to allow Parke to circumvent the gatekeeping provision of § 2255, in that he would be allowed to achieve district court review of his claim without certification from the Court of Appeals that Massaro is in fact "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court". See § 2255.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, introduced a gatekeeping provision into the federal habeas framework, which requires petitioners to seek permission prior to filing additional (second or successive) habeas petitions. See Donaldson v. United States, Nos. 01-CV-1061, 92-CR-51-001, 2003 WL 22959502, at *2 (N.D.N.Y. Oct. 27, 2003). To be labeled as second or successive, a petition must "represent a second attack by a federal habeas petitioner on the same conviction." See id., citing Villanueva v. United States, 346 F.3d 55, 60 (2d Cir. 2003). Also, in order for a § 2255 petition to be considered second or successive, a prior § 2255 petition must have been considered on the merits. See id. "[A] habeas petition that is properly dismissed as time-barred under AEDPA constitutes an adjudication on the merits for successive purposes." See id. Here, Parke's prior habeas petition was decided against him on the merits by this court in 1999. He is now presenting a second attack on the same conviction at issue in the denial of his prior petition.

Moreover, a thorough review of Rodriguez and the cases that follow it reveals that the present motion is in fact a second or successive habeas petition. See Rodriguez, 252 F.3d 191; Gitten, 311 F.3d 529: Harris, 293 F. Supp. 259:Roccisano, 2003 WL 21396668. In Rodriguez, the Second Circuit held that "a motion under Rule 60(b) to vacate a judgment denying habeas is not the equivalent of a second or successive habeas petition subject to the standards of [28 U.S.C.] § 2244(b)." See Rodriguez, 252 F.3d at 194. Later, In Gitten, the Supreme Court went on to make clear that a motion which is based on grounds that can be characterized as a new attack on a conviction or sentence is not a Rule 60(b) motion but a second or successive habeas petition. See Harris, 293 F. Supp.2d at 268.citing Gitten, 311 F.3d at 532. See also Roccisano, 2003 WL 21396668, at *2. Here, Parke is presenting the Court with a new attack on his conviction and is asking the Court to revisit his ineffective assistance of trial counsel claim, previously denied on the merits. Such a claim is properly characterized as a second or successive habeas petition, and as such, must be certified by the court of appeals before this Court may adjudicate it.

Conclusion

IT IS SO ORDERED.