Opinion
C.A. No. 08-11592-MLW.
May 12, 2010
MEMORANDUM AND ORDER
On September 17, 2008, petitioner Carlo Siniscalchi filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, which the court construed as being filed pursuant to 28 U.S.C. § 2254. On February 15, 2010, the court dismissed the petition as untimely.
On April 13, 2010, petitioner filed a Motion for Reconsideration or Certificate of Appealability. He argues (1) that the court's ruling with respect to timeliness was erroneous in light of Jimenez v. Quarterman, 129 S. Ct. 681 (2009); (2) that the issue of fraud by a prosecutor may be raised at any time; and (3) that this court committed a crime by maladministering the case.
Following judgment, a motion for reconsideration may be considered under Federal Rule of Civil Procedure 59(e) or 60(b). Cintron-Lorenzo v. Departamento de Asuntos del Consumidor, 312 F.3d 522, 525 n. 3 (1st Cir. 2002). Rule 60(b) is applicable, as the motion was apparently deposited in the prison mail system 53 days after the February 15, 2010 Order. See Fed.R.Crim.P. 59(e) (imposing time limit of 28 days); cf. Morris v. Unum Life Ins. Co. of America, 430 F.3d 500, 502 (1st Cir. 2005) (stating, under prior version of Rule 59(e), that 10 day limit "is mandatory" and that "the district court has no power or discretion to modify it").
Rule 60(b) permits relief from a final judgment or order if the movant demonstrates excusable neglect, newly discovered evidence, misconduct by an opposing party, a void judgment, a satisfied judgment, or any other reason that justifies relief. Relief under Rule 60(b) "`is extraordinary in nature,'" and "`motions invoking that rule should be granted sparingly." Cintron, 312 F.3d at 527 (quoting Karak v. Bursaw Oil Corp., 288 F.3d 15, 19 (1st Cir. 2002)). Here, petitioner disagrees with the court's legal conclusions and decision to grant the motion to dismiss, but has stated no facts nor developed any argument that would entitle him to such extraordinary relief under any of the categories of Rule 60(b).See Jahagirdar v. United States, 653 F. Supp. 2d 125, 127-28 (D. Mass. 2009).
Moreover, petitioner's arguments fail on the merits. As to timeliness,Jimenez was decided roughly four months before petitioner was required to respond to respondent's Motion to Dismiss, and yet petitioner did not raise any argument under Jimenez. See Response to Respondent's Answer at 1. Instead, petitioner expressly conceded that his petition was untimely and relied instead on the argument that an actually innocent petitioner is exempt from the requirements of 28 U.S.C. § 2244(d). See id. Additionally, Jimenez is not applicable, as there is no indication that the state courts ever reopened petitioner's direct appeal process. See 129 S. Ct. at 686. As to petitioner's other arguments, the court finds no authority that would justify relief on those grounds. Accordingly, the court is denying petitioner's request for reconsideration under Rule 60(b).
As to a Certificate of Appealability ("COA"), determining whether a COA should issue where the petition was dismissed on procedural grounds includes two questions, one directed at the underlying constitutional claims and one directed at the District Court's procedural holding. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). A COA may be granted where a supposed antecedent procedural bar prevented the District Court from reaching the constitutional claim if (1) the soundness of the procedural ruling is debatable, and (2) the constitutional claim is colorable. See Mateo v. United States, 310 F.3d 39, 40 (1st Cir. 2002). "Section 2253 mandates that both showings be made before the Court of Appeals may entertain an appeal." Slack, 529 U.S. at 485. Therefore, a COA will not issue if either question is answered in the negative. See id.
To meet both elements for a COA, the petitioner must show "at least that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural rulings." Id. at 478. An issue "can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). However, the "issuance of a COA must not be pro forma or a matter of course" because Congress has "confirmed the necessity and the requirement of differential treatment for those appeals deserving of attention from those that plainly do not." Id. at 337.
The question in this case can be disposed of properly by looking only at the soundness of the court's procedural decision. See Slack, 529 U.S. at 485; Mateo, 310 F.3d at 40. The court determined (and petitioner conceded) that the petition was time barred. Regarding actual innocence, as the court explained in the February 15, 2010 Order, the First Circuit does not recognize an actual innocence exception to that time bar, petitioner did not present new evidence that could support an actual innocence claim, and petitioner's claim is not one of actual innocence in any event. No reasonable jurist could find these conclusions to be debatable. Therefore, a COA is not being granted.
Because the court is denying a COA, petitioner may seek a COA from the First Circuit. See Fed.R.App.P. 22; § 2255 Rule 11(b).
Accordingly, it is hereby ORDERED that:
1. Petitioner's Motion for Reconsideration (Docket No. 22) is DENIED.
2. A Certificate of Appealability is DENIED.
2. Petitioner's Motion to Stay Action of Appeal (Docket No. 20) is MOOT.