Opinion
05 Civ. 3009 (RMB) (KNF).
November 24, 2009
REPORT RECOMMENDATION
I. INTRODUCTION
Before the Court is Jonathan Gibson's ("Gibson" or "the petitioner") motion, made pursuant to Fed.R.Civ.P. 60(b)(2), to vacate the judgment of dismissal, entered August 13, 2007, denying Gibson's petition for a writ of habeas corpus, made pursuant to 28 U.S.C. § 2254. Specifically, Gibson requests that the court "restore[] his rights to appeal," rule on whether a certificate of appealability ("COA") should issue, and vacate its order denying his application for the writ. Gibson contends his motion should be granted because: (1) he never received a copy of the order of dismissal; and (2) he did not file a notice of appeal timely, due to his ignorance of the order, and, therefore, has "forfeited" his right to appeal by no fault of his own. The petitioner also maintains that the judgment should be vacated, because his state-court application for a writ of error coram nobis "should have been considered as a matter of law as an amendment to the petition for [a] writ of habeas corpus." The respondent opposed the petitioner's Rule 60(b) motion and the petitioner replied to the respondent's opposition. The motion is addressed below.
II. BACKGROUND AND PROCEDURAL HISTORY
In March 2005, the petitioner, proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for second- and third-degree criminal possession of a weapon, following a jury trial in New York State Supreme Court, Kings County. While his petition was pending, Gibson filed a motion to stay habeas corpus proceedings and hold his petition in abeyance so he could return to state court to exhaust, inter alia, a claim that his appellate counsel rendered ineffective assistance to him. The respondent opposed Gibson's stay motion, and, in his reply to the respondent's opposition, Gibson requested that the court take judicial notice of an application for a writ of error coram nobis, which challenged the effectiveness of the assistance his appellate counsel rendered to him. The Court construed Gibson's request, that judicial notice be taken of his writ of error coram nobis application, liberally and deemed it a request to amend his habeas corpus petition to include, as a ground for relief, ineffective assistance of appellate counsel. The respondent was directed to file a response to the petitioner's request to amend his habeas corpus petition, and did so.
On May 7, 2007, a report was filed, recommending the denial of Gibson's: (1) request to amend his habeas corpus petition, as the amendment would be futile; (2) request to stay adjudication of his application for a writ of habeas corpus; and (3) habeas corpus petition. In a document dated May 14, 2007, Gibson asserted objections to the report and recommendation timely. The heading on the first page of Gibson's objections provides the following address for Gibson: Auburn Correctional Facility, 135 State Street, Auburn, NY 13024. Among his objections, Gibson maintained that the claims raised in his writ of error coram nobis application were reviewable through a petition for a writ of habeas corpus, and that he should be "permit[ted] . . . to file an amended petition."
On August 10, 2007, your Honor adopted the report and recommendation, in its entirety, and found, inter alia, the report and recommendation "properly determined that Petitioner's request to amend his Petition should be denied." Your Honor declined to issue a COA. Judgment was entered on August 13, 2007. The docket sheet maintained by the Clerk of Court for this matter reveals that, on August 13, 2007, the Clerk's Office mailed a notice of the judgment and right to appeal to Gibson. However, on September 27, 2007, the mail sent to Gibson — which was addressed to Gibson at the Cayuga Correctional Facility, P.O. Box 1186, Moravia, NY 13118 — was returned to the Clerk's Office.
According to the documents attached to Gibson's motion, he submitted a May 27, 2009 letter to the Pro Se Office for this judicial district, noting he never received any mail from the court informing him his case was dismissed, and inquiring "where can I go from here?" In a response dated June 22, 2009, the Pro Se Office informed Gibson his case was dismissed, on August 13, 2007, and that, "with the exception of a Notice of Appeal or a Motion for Reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure," no further papers could be accepted. Gibson's Fed.R.Civ.P. 60(b) "notice of motion" is dated July 9, 2009; his memorandum of law, in support of the motion, is dated July 14, 2009; and his affirmation, in support of the motion, is dated July 16, 2009.
III. DISCUSSION
"Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986). Rule 60(b) "should be broadly construed to do substantial justice, . . . yet final judgments should not be lightly reopened." Id. (internal quotations marks and citations omitted). "A motion seeking relief pursuant to Rule 60(b) is addressed to the sound discretion of the district court." Devino v. Duncan, 215 F. Supp. 2d 414, 416 (S.D.N.Y. 2002).Pursuant to Fed.R.Civ.P. 60(b)(2), "the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: . . . (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)." "A motion made under Rule 60(b) must be made within a reasonable time — and for reasons (1), (2), and (3) 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)(1).
To the extent the petitioner's motion may be made properly pursuant to Fed.R.Civ.P. 60(b)(2), the motion, crediting the earliest date within his papers, was dated July 9, 2009, and was thus not made within one year after entry of the judgment against him, which occurred on August 13, 2007. Since Gibson is proceeding pro se, and the Court "liberally construe[s] his pro se submissions to . . . 'raise the strongest arguments that they suggest,'" Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 [2d Cir. 1994]), the Court construes the petitioner's motion as a Rule 60(b)(6) motion. Fed.R.Civ.P. 60(b)(6) permits a court to grant relief from a final judgment or order for "any other reason [, besides the five set forth in the Rule,] that justifies relief."
"Rule 60(b)(6) may not be used to circumvent the 1-year limitations period," that governs Rule 60(b)(1), (2), and (3).Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000). However, "the circumstances presented when a party does not receive notice of an order of dismissal may in some instances require a tempering of the harshness of the rule, and give a court discretion to treat the motion to vacate as arising under subdivision (6) of Rule 60(b) which imposes only the 'reasonable time' requirement."Savitz v. Searle Co., 94 F.R.D. 669, 671 (E.D.N.Y. 1982). The relevant inquiry is, thus, whether the petitioner "acted in moving to vacate within a reasonable time from the point at which [he] learned of the dismissal." Id.
Seventeen days elapsed between the June 22, 2009 response from the Pro Se Office to Gibson's inquiry and the date of Gibson's Fed.R.Civ.P. 60 notice of motion, July 9, 2009. The speed with which Gibson acted was reasonable and warrants a finding that his motion was submitted timely.
Federal Rule of Appellate Procedure 4(a)(1)(A) provides "[i]n a civil case . . . the notice of appeal . . . must be filed with the district clerk within 30 days after the judgment or order appealed from is entered." Judgment was entered on August 13, 2007; accordingly, Gibson's time to file a notice of appeal expired, unless he satisfies Fed.R.App.P. 4(a)(6)'s criteria to reopen the time to file a notice of appeal. See Fed.R.App.P. 4(a)(5), 4(a)(6).
In the circumstance of this case, Gibson does not qualify for an extension of time to file his notice of appeal, pursuant to Fed.R.App.P. 4(a)(5). This is so, because Fed.R.App.P. 4(a)(5) creates a "grace period," during which a district court may extend the time to file a notice of appeal, if a "party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires," which, in this case, is 30 days from entry of the judgment. Since Gibson did not file his motion until more than a year elapsed from the time his notice of appeal was due, the time to seek an extension, under Rule 4(a)(5), has expired.See Cohen v. Empire Blue Cross and Blue Shield, 142 F.3d 116, 118 (2d Cir. 1998) (providing that the district court "lacks jurisdiction to grant any extension motion that is not filed within Rule 4(a)(5)'s 30-day 'grace period'") (citations omitted).
Federal Rule of Appellate Procedure 4(a)(6) provides: "[t]he district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied: (A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed . . . within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry . . .; and (C) the court finds that no party would be prejudiced." Federal Rule of Civil Procedure 77(d)(1) provides the following: "Immediately after entering an order or judgment, the clerk must serve notice of the entry, as provided in Rule 5(b), on each party who is not in default for failing to appear. The clerk must record the service on the docket." According to Fed.R.Civ.P. 5(b)(2)(C), service may be effected by mailing a document "to the person's last known address — in which event service is complete upon mailing."
The docket sheet reflects that the returned notices of judgment and right to appeal were mailed to Gibson at Mid-State Correctional Facility, P.O. Box 2500, Marcy, NY 13403. However, the last document submitted to the court by Gibson — his objections to the report and recommendation — lists Gibson's address as: Auburn Correctional Facility, 135 State Street, Auburn, NY 13024. Therefore, Gibson's "last known address" was the Auburn Correctional Facility address, not the Mid-State Correctional Facility address. Consequently, notice was not served properly, in accordance with Fed.R.Civ.P. 5(b). By extension, the judgment was not served on Gibson in accordance with Fed.R.Civ.P. 77(d). Since no indication exists that a notice of judgment was served on Gibson properly, within the meaning of Fed.R.Civ.P. 77(d) and 5(b), Gibson's deadline for filing his motion to reopen has not begun to run. See Fed.R.App.P. 4(a) ("[t]he district court may reopen the time to file an appeal . . . if . . . the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order . . .; [and] (B) the motion is filed . . . within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry . . ."). Therefore, Gibson has shown he did not receive notice under Fed.R.Civ.P. 77(d), and he has moved timely to reopen the period to file his notice of appeal.
The final requirement for seeking to reopen the time to file an appeal, is to demonstrate that no party would be prejudiced, if the motion were granted. "Prejudice," in this context, is "'some adverse consequence[] other than the cost of having to oppose the appeal and encounter the risk of reversal, [a] consequence[] that [is] present in every appeal.'" Cordon v. Greiner, 274 F. Supp. 2d 434, 441 (S.D.N.Y. 2003) (quoting Fed.R.App.P. 4 Advisory Committee Notes to the 1991 Amendment). Pursuant to Local Civil Rule 6.1, of this court, "any opposing affidavits and answering memoranda [to the petitioner's motion] shall be served within ten business days after service of the moving papers." The respondent, in the declaration filed in opposition to the plaintiff's motion, does not state that any prejudice will result if the petitioner's motion is granted. Thus, no basis exists upon which to conclude the respondent would suffer prejudice if the petitioner's time to file an appeal were reopened. The prejudice the petitioner would suffer, as a result of being deprived of his right to file a notice of appeal timely, through no fault of his own, is notable. Accordingly, the Court finds that it would be reasonable and appropriate to grant the petitioner's request to reopen the time to file an appeal, and grant the petitioner 14 days to file his notice of appeal.
The petitioner requests that the court determine whether a COA should issue, because no such ruling was made previously. The petitioner is wrong. In the August 10, 2007 order, your Honor declined to issue a COA.
The petitioner's request that the judgment of dismissal be vacated — because his writ of error coram nobis application should have been treated as an amendment to his habeas corpus petition, because: (1) the respondent did not object to such an amendment; and (2) leave to amend should be granted freely — is meritless. The petitioner ignores that portion of the previously issued report and recommendation finding that allowing Gibson to amend his petition, to add an unexhausted claim lacking in merit, would be futile. In addition, in his objections to that report and recommendation, Gibson urged the court to "permit [him] to file an amended petition." Your Honor considered this objection, rejected it, and adopted the reasoning in the report and recommendation — that amendment would be futile. Since Rule 60(b) is "a mechanism for 'extraordinary judicial relief invoked only if the moving party demonstrates 'exceptional circumstances,'" Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008), and Gibson has not shown a basis for disturbing the judgment of dismissal on a basis not already raised and addressed by the court, favorable action on the petitioner's request to vacate the judgment is not warranted.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the petitioner's motion be granted, in part, with respect to the request to reopen the time to file an appeal, and that the petitioner be allotted 14 days to file his notice of appeal. I recommend further that the petitioner's request to vacate the judgment of dismissal, be denied, and that his request for a ruling on a COA, be denied, as moot.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 500 Pearl Street, Room 650, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).