Opinion
03-CV-0796A.
February 8, 2005
DECISION AND ORDER
On June 24, 2004, Petitioner filed motions to vacate the judgment (Docket No. 7), entered June 9, 2004, and for reconsideration (Docket No. 9) of the Court's Order (Hon John T. Curtin), entered June 7, 2004, which dismissed the instant petition for habeas corpus relief on the ground that it was untimely pursuant to 28 U.S.C. § 2244(d)(1). Petitioner also filed a Notice of Appeal from the judgement on July 6, 2004. (Docket No. 10). Petitioner's motions to vacate the judgment and for reconsideration seek to simply re-argue the Court's determination that he was not entitled to an equitable tolling of the statute of limitations based on his claim that during the time he and his inmate assistant were preparing his state post-conviction motion pursuant to N.Y.Crim.Proc.L., §§ 440.10 and 440.20, the law library's word processors were confiscated.
Petitioner has also filed a motion for appointment of counsel (Docket No. 8), which is denied as moot because, as set forth below, petitioner's motions to vacate and for reconsideration will be denied.
Fed.R.Civ.P. 60(b), which provides for relief from a final judgment, order, or proceeding when, for example, there has been a mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence which by due diligence could not have been discovered in time.
The Court notes that this matter has also been appealed. While ordinarily the appeal will deprive the Court of jurisdiction over petitioner's motion, see Fed.R.App.P. 4(a)(4), the Court may entertain the motion if it decides, as it does here, that the motion must be denied. See, e.g., Toliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992).
As noted, petitioner claims that the Court should have equitably tolled the statute of limitations based on his claim that the Deputy Superintendent of Security at the Elmira Correctional Facility ordered that the law library's word processors be confiscated. The Court previously considered and rejected this claim when it issued the Order dismissing the petition. Nothing in petitioner's motions allow the Court to grant relief from said Order under Fed.R.Civ.P. 60(b); petitioner does not demonstrate that there has been a mistake, inadvertence, surprise, excusable neglect, or newly discovered evidence which by due diligence could not have been discovered in time, nor does he show that his claim should be reopened in the interest of justice.
Accordingly, petitioner's motions to vacate the judgment (Docket No. 7) and for reconsideration (Docket No. 9), and his motion for appointment of counsel (Docket No. 8) are denied.
IT IS SO ORDERED.