Opinion
01. Civ. 2173 (SAS).
September 7, 2001
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Petitioner, proceeding pro se, moves for reconsideration of this Court's Opinion denying his petition for a writ of habeas corpus and refusing to grant a certificate of appealability. See DeJesus v. Greiner, 01 Civ. 2173, 2001 WL 873199, at *8 (Aug. 2, 2001). Although petitioner does not specifically refer to Local Rule 6.3, this motion will be treated as if made under that Rule.
References to "Local Rules" are, more specifically references to the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, effective April 15, 1997.
Petitioner requests that his petition be dismissed without prejudice or that he be granted a certificate of appealability in order to appeal to the Second Circuit. This relief is purportedly needed so that petitioner can exhaust a claim he believes to be unexhausted. Specifically, petitioner intends to bring a writ of error coram nobis in the Appellate Division, First Department, claiming that the People of the State of New York failed to prove his guilt beyond a reasonable doubt at trial. See Motion for Reconsideration Ex. A (June 21, 2001 letter from petitioner incorrectly addressed to Judge Saks requesting that his petition be dismissed without prejudice). For the following reasons, petitioner's motion is denied.
II. DISCUSSION
1. Motion for Reconsideration
A. Legal Standards
Motions for reconsideration are governed by Local Rule 6.3 which is applicable to habeas proceedings. See Thomas v. United States, No. 97 Civ. 8461, 1998 WL 574392, at *1 (S.D.N Y Sept. 8, 1998). A motion for reconsideration is appropriate when the court overlooked "controlling decisions or factual matters that were put before it on the underlying motion . . . and which, had they been considered, might have reasonably altered the result before the court." Range Road Music, Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 392 (S.D.N.Y. 2000) (quotation marks and citation omitted). Alternatively, a motion for reconsideration may be granted to "correct a clear error or prevent manifest injustice." Griffin Indus., Inc. v. Petrojam, Ltd., 72 F. Supp.2d 365, 368 (S.D.N.Y. 1999).
Local Rule 6.3 "should be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court." Dellefave v. Access Temps., Inc., No. 99 Civ. 6098, 2001 WL 286771, at *1 (S.D.N.Y. Mar. 22, 2001). See also In re Houbigat, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996) (a Local Rule 6.3 motion "is not a motion to reargue those issues already considered when a party does not like the way the original motion was resolved"); Carolco Pictures, Inc. v. Sirota, 700 F. Supp. 169, 170 (S.D.N Y 1988) (purpose of Local Rule 6.3 is to "ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters").
2. Writ of Error Coram Nobis
Coram nobis is not a substitute for direct appeal. See Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996). Nor may the writ be used as a substitute for an appeal to vacate a judgment of conviction. See People v. Howard, 236 N.Y.S.2d 39, 41 (1962). "`In a criminal action, the writ of error coram nobis lies in [the state appellate court] only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel.'" Turner v. Artuz, No. 00-3567, 2001 WL 909193, at *4 (2d Cir. Aug. 13, 2001) (quoting People v. Gordon. 584 N.Y.S.2d 318, 318 (2d Dep't 1992) (alterations in original)). To hold otherwise would "introduce confusion in the administration of justice if defenses or objections which might have been made and reviewed on appeal could be reserved as grounds for collateral attack upon the judgment of conviction years after it was rendered." People v. Howard, 236 N.Y.S.2d at 43.
B. Petitioner's Argument
Petitioner seeks to raise the same argument that was considered and rejected by the First Department on appeal, namely that his conviction was against the weight of the evidence. See Dejesus, 2001 WL 873199, at *2. Although petitioner recasts this claim as a failure to prove his guilt beyond a reasonable doubt, its merits have already been considered by the First Department. And although this claim was not presented to the New York Court of Appeals, it is no longer subject to consideration by that court. See id. at *4. Accordingly, the collateral remedy of a writ of error coram nobis is not available. Cf. United States ex rel. Eidenmuller v. Pay, 240 F. Supp. 591, 594 (S.D.N.Y. 1965) (if a "claim was not considered on its merits, then it must be determined whether there exists an available collateral remedy in New York"). Thus, the state court remedies are deemed exhausted with regard to this claim. See id. Because this claim is not subject to further state review, by way of a writ of error coram nobis or otherwise, there is no need to deem the instant petition dismissed without prejudice.
Unlike Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir. 2001) petitioner does not present a "mixed petition" because he has no further recourse to state court. Accordingly, there is no need to dismiss the purported unexhausted claim and stay the balance of the petition to enable petitioner to exhaust state remedies. See id. at 380 (district court should retain jurisdiction over exhausted claims and stay further proceedings pending complete exhaustion of unexhausted claims). Zarvela is thus distinguishable for this reason and because, in Zarvela, the outright dismissal of the entire petition would have resulted in a time-bar under AEDPA's one-year statute of limitations. See id. Furthermore, although not expressly stated by the Second Circuit, it appears that Zarvela's unexhausted claim had some merit justifying a stay pending complete exhaustion. See id. ("`Indeed, there is every reason to [stay proceedings pending exhaustion] . . . when the failure to retain jurisdiction would foreclose federal review of a meritorious claim because of the lapse of AEDPA's 1-year limitations period.'") (quoting Duncan v. Walker, 121 S.Ct. 2120, 2130 (2001) (Stevens, J., with whom Souter, J. joins, concurring in part and concurring in the judgment) (alteration in original, emphasis added)).
The result would be the same even if the above claim was not exhausted. Under the Antiterrorism and Effective Death Penalty Act (-"AEDPA"), "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2); see also Duncan, 121 S.Ct. at 2134 ("[T]he prisoner who chooses to go into federal court with unexhausted claims runs the risk that the district court will simply deny those claims on the merits, as it is permitted to do, . . .") (citing 28 U.S.C. § 2254(b)(2)); Turner, 2001 WL 909193, at *3 (under AEDPA, a district court has the option of denying mixed petitions on the merits). Because petitioner's failure of proof claim is without merit, it would have been dismissed on the merits even if it was not procedurally defaulted. See DeJesus, 2001 WL 873199, at *4. Petitioner has thus failed to raise a controlling decision or factual matter that would justify reconsideration of this Court's earlier decision.
III. CONCLUSION
Because there is no reason to vacate this Court's order dismissing the petition, petitioner's request that his petition be dismissed without prejudice is denied. As to the certificate of appealability, petitioner still has not made a substantial showing of the denial of a constitutional right. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 531 U.S. 873 (2000). Accordingly, petitioners's request for a certificate of appealability is also denied. The Clerk of the Court is directed to close this motion.
It should be noted that the Second Circuit can also issue a certificate of appealability. See 28 U.S.C. § 2253(c)(1) (appeal to the court of appeals may not be taken unless a circuit justice or judge issues a certificate of appealability).