Opinion
05 Civ. 10819 (LAK)
12-23-2011
EDWARD STEVENS, Petitioner, v. ERIC T. SCHNEIDERMAN, New York State Attorney General, and DAVID MILLER, Superintendent, Eastern Correctional Facility, Respondents.
Appearances: Richard Joselson THE LEGAL AID SOCIETY Attorneys for Petitioner Priscilla Steward Alyson Gill Assistant Attorneys General ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK Attorneys for Respondents
MEMORANDUM AND ORDER
Appearances: Richard Joselson
THE LEGAL AID SOCIETY
Attorneys for Petitioner Priscilla Steward
Alyson Gill
Assistant Attorneys General
ERIC T. SCHNEIDERMAN
ATTORNEY GENERAL OF THE
STATE OF NEW YORK
Attorneys for Respondents LEWIS A. KAPLAN, District Judge.
Petitioner was convicted in state court of robbery in the third degree, an offense ordinarily punishable by a sentence of up to 7 years. He was sentenced, however, to a term of 15 years to life as a persistent felony offender ("PFO") on the basis of findings made by the sentencing judge rather than by the jury. He challenged that sentence unsuccessfully on direct appeal and did so again in this federal habeas proceeding.
In 2010, while the petition in this case was pending, a panel of the Second Circuit decided five habeas appeals involving the constitutionality of the New York PFO statute, the first of which was entitled Besser v. Walsh. It there held the statute unconstitutional on precisely the grounds asserted by petitioner. Accordingly, this Court - acting on the then-controlling authority - granted the writ in this case to the extent of directing that petitioner either be resentenced or released within 60 days.
A short time after this Court's order, the Second Circuit issued an en banc decision under the title Portalatin v. Graham which held, contrary to the panel decision, that New York's PFO statute was constitutional. Even though this Court's order granting habeas relief to petitioner relied on Besser's holding that the PFO statute was unconstitutional, neither respondents (hereinafter referred to as the "State" for convenience) nor petitioner brought the en banc decision to this Court's attention or sought relief on its authority. Moreover, the State allowed its time to appeal in this case, and to obtain extension of that time, to expire.
Five days short of one year after the en banc decision, the State, relying on Portalatin, suddenly moved pursuant to Federal Rule of Civil Procedure 60(b)(6), to vacate this Court's judgment granting the habeas petition.
This application involves sharply conflicting considerations.
First, there is virtually no doubt that the State, had it appealed from this Court's judgment, would have prevailed in light of Portalatin. Indeed, had the State promptly moved before this Court for reconsideration, it almost certainly would have prevailed. From that point of view, much could be said for ignoring the lapse of time.
On the other hand, the State's failures here have been extraordinary and inexplicable. It ignored this Court's order to resentence or release the petitioner within 60 days. It allowed its time to appeal from this Court's judgment to expire despite its knowledge that Portalatin had upheld New York's PFO statute. It did not seek reconsideration by this Court for almost a year. And even on the most charitable view of its actions, its counsel ignored their professional responsibility to remain informed of publicly available developments in this case. Hence, although courts on occasion excuse procedural failures by counsel representing public agencies on the theory that the public should not suffer for the deficiencies of its lawyers, there comes a point beyond which such failures should not be overlooked. So the ultimate question is whether this case has gone beyond that point.
Facts
Procedural History
On August 5, 1999, a jury in the Supreme Court of the State of New York convicted petitioner of one count of robbery in the third degree, a class D felony. A class D felony is punishable by a prison term of up to 7 years. At sentencing, however, the prosecution argued that petitioner was a PFO eligible for an enhanced sentence under New York's PFO statute. The sentencing judge agreed and, on March 29, 2000, sentenced petitioner principally to an enhanced term of 15 years to life.
See N.Y. PENAL L. § 160.05 (2010).
See id. § 70.00(2)(d) (2009).
See id. § 70.10 (2009).
On direct appeal, petitioner argued, inter alia, that the enhanced sentence under the PFO statute violated his constitutional rights because the sentencing judge, rather than the jury, had made the factual findings underlying the PFO determination. The Appellate Division affirmed his enhanced sentence on June 1, 2004, and the New York Court of Appeals subsequently denied his application for leave to appeal.
See People v. Stevens, 8 A.D.3d 2, 778 N.Y.S.2d 1 (1st Dept. 2004), leave to appeal denied, 3 N.Y.3d 742, 786 N.Y.S.2d 822 (Table) (2004). The Appellate Division held that petitioner's challenge was "unpreserved for appellate review and, in any event, . . . without merit." 8 A.D.3d at 3. The People, it should be noted, conceded and the magistrate judge held that the Appellate Division's holding that petitioner's constitutional attack on the PFO statute and his sentence was not an independent and adequate bar to habeas review. DI 10.
Petitioner filed his habeas petition in this Court on December 28, 2005. It was referred to Magistrate Judge Frank Maas who, on December 31, 2008, recommended that it be denied. This Court then stayed proceedings on petitioner's objections to the report and recommendation pending the Second Circuit's resolution of a number of then-pending appeals raising the question of the constitutionality of New York's PFO statute.
DI 10.
DI 13.
On March 31, 2010, the Second Circuit, in a single opinion under the lead title Besser v. Walsh, decided the appeals, the resolution of which this Court had waited - Besser, Washington v. Poole, Portalatin v. Graham, Morris v. Artus, and Phillips v. Artus. While the opinion upheld the New York PFO statute, the Court dealt with the underlying appeals differently. It is helpful to understand their varying postures.
601 F.3d 163 (2d Cir. 2010). Five cases were consolidated in this appeal: Besser v. Walsh, No. 05-4375, Washington v. Poole, No. 07-3949, Portalatin v. Graham, No. 07-1599, Morris v. Artus, No. 07-3588, and Phillips v. Artus, No. 06-3550.
The differences arose in consequence of the varied dispositions by the district courts of the five cases. In Besser, the district court had denied the habeas petition because Besser had not exhausted his sate remedies before filing. The district courts in Portalatin and Washington had held that the PFO statute violated the Sixth Amendment and granted the respective habeas petitions. The district courts in Phillips and Morris had held that the PFO statute was constitutional and denied the habeas petitions.
Besser v. Walsh, No. 02 Civ. 6775 (LAK), 2005 WL 1489141, at *1 (S.D.N.Y. June 22, 2005).
Besser, 601 F.3d at 163-64.
On April 1, 2010, petitioner requested that this Court grant his habeas petition on the authority of the panel decision. Almost two weeks later, the Second Circuit received three different petitions for rehearing and rehearing en banc: one by Besser contesting the affirmance of the denial of his habeas petition and two by habeas respondents contesting the holding that the PFO statute was unconstitutional.
DI 14.
Besser v. Walsh, Second Circuit Docket Sheet, Unnumbered docket entry, Apr. 14, 2010. Phillips v. Artus, Second Circuit Docket Sheet, Unnumbered docket entries, Apr. 14, 2010.
On April 16, 2010, the State responded to the request by petitioner in this case that his habeas petition be granted with a letter stating that this Court should hold its decision in abeyance because the Besser respondent had petitioned for rehearing en banc and the mandate had not issued. Although the State's letter mentioned that "the post-Blakely respondents in the Besser appeals" had petitioned for rehearing en banc, the letter failed specifically to distinguish among the petitions for rehearing.
DI 23, Ex. A. Although it is undisputed that such a letter was sent, the Court has no record of having received it.
Id.
On April 30, 2010, the Circuit granted respondent Graham's en banc petition. Besser's petition for rehearing, however, was denied on May 7, 2010, and his en banc rehearing petition was denied on June 4, 2010. Because the Second Circuit granted Graham's petition, it heard the Portalatin, Morris, and Phillips appeals en banc on July 9, 2010 under the title of Portalatin v. Graham.
Phillips v. Artus, Second Circuit Docket Sheet, Unnumbered docket entry, Apr. 30, 2010. The petition filed by Spitzer, Artus, and Poole was denied as moot on May 13, 2010 because Graham's petition had previously been granted.
Besser v. Walsh, Second Circuit Docket Sheet, Unnumbered docket entries, May 7, 2010 & June 4, 2010.
The mandate issued on July 30, 2010. Id., July 30, 2010 entry
Phillips v. Artus, Second Circuit Docket Sheet, Unnumbered docket entry, July 9, 2010. Washington v. Poole was not heard en banc because the case was rendered moot because the petitioner in that case died before the case was argued.
The litigants in this case did not keep this Court informed of all of this activity in the Second Circuit. From April 16, 2010 - the date on which the State asked the Court to hold this matter in abeyance pending the outcome of the various en banc petitions - to the issuance of the mandate in Besser's appeal on July 30, 2010, neither petitioner nor the State advised the Court of any of these developments. Accordingly, following the issuance of the mandate in Besser, and in reliance on the panel decision, this Court on September 27, 2010 conditionally granted petitioner's habeas petition unless he were resentenced in accordance with the decision within 60 days. Judgment was entered a few days later. Both the decision granting the petition and the judgment were posted promptly on the CM/ECF system and thus became publicly available. In addition, the Clerk of Court mailed a copy of the judgment together with a form notice of the right to appeal to petitioner's counsel although, at least so far as the docket sheet indicates, not to the State's counsel.
Rehearing was denied and the mandate issued in Besser because the Circuit there had affirmed the denial of his habeas petition and thus did not grant en banc hearing in it on the PFO issue.
DI 16.
DI 17.
Stevens v. Miller, S.D.N.Y. Docket Sheet, Unnumbered docket entry, Sept. 29, 2010.
On October 18, 2010, the Second Circuit decided Portalatin and held, contrary to the Besser panel, that New York's PFO statute was constitutional. Despite this Court's September 27 ruling in this case, however, all had not yet been lost for the State at that point. Its time to appeal the decision here had not expired. Moreover, as the Attorney General's office represented the respondents both in this case and in all of the cases decided under the Portalatin title, it obviously was aware of Portalatin and of its significance to this case. Nevertheless, the State filed no appeal here. Nor, after allowing the time within which to appeal to expire, did it seek an extension of the 30-day period within which to do so, which it could have done to and including November 30, 2010. Furthermore, the State did not even move pursuant to then Appellate Rule 4(a)(6) to reopen the time within which to file an appeal, which it could have done up to and including April 29, 2011 on a proper showing. Instead, silence prevailed - from both sides - until the State filed this motion for Rule 60(b)(6) relief on October 13, 2011. October 18, 2011 Oral Argument on the Rule 60(b)(6) Motion
Portalatin v. Graham, 624 F.3d 69 (2d Cir. 2010).
As judgment was entered on September 29, 2010, the time to appeal was not to expire until October 31, 2010. (FED. R. APP. P. 4(a), in its then current form, gave respondents 30 days from the entry of judgment within which to appeal. The thirtieth day, however, was Saturday, October 29, 2010. FED R. APP. P. 26(a)(1)(C) therefore extended the period to the following Monday.)
Then Appellate Rule 4(a)(5)(C).
At oral argument, the State asserted two central arguments in support of its Rule 60(b)(6) motion. First, it argued that relief is appropriate here as the Court erred in relying on Besser because the mandate had not issued and the Circuit's decision was not final. Second, it sought relief on the basis that the Clerk of Court failed to provide it with written notice of this Court's September 27, 2010 judgment. As will appear, the facts described above and the admissions by the State's counsel at oral argument, however, undermine both arguments.
Discussion
Rule 60(b) allows a court to relieve a party from a final judgment when various circumstances exist. It provides that:
"On motion and just terms, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . . ; (3) fraud . . . , misrepresentation, or other misconduct of an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, . . . [or] it is based on an earlier judgment that has been reversed or vacated . . . ; or (6) any other reason justifying relief from the operation of the judgment."All Rule 60(b) motions "must be made within a reasonable time," and motions under subparts (1), (2), and (3) must be made "no more than a year after the entry of the judgment or order or the date of the proceeding." Because Rule 60(b) relief disrupts the finality of judgments, the Second Circuit has stated that Rule 60(b) motions are disfavored and that they are "addressed to the sound discretion of the district court."
Id. at 60(c)(1).
See, e.g., Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004); see also Empresa Cubana Del Tabaco v. General Cigar Co. Inc., No. 08-5878-cv, 2010 WL 2759416, at *1 (2d Cir. July 14, 2010) ("We have cautioned . . . that Rule 60(b) motions are disfavored . . . .").
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
As the outset, we must consider the fact that Rules 60(b)(1) and 60(b)(6) are said to be "mutually exclusive." Accordingly, "any conduct which generally falls under the former cannot stand as a ground for relief under the latter." We therefore consider first whether the State's failure to appeal or otherwise to seek relief from the judgment in these circumstances "generally falls under" Rule 60(b)(1), then whether the circumstances nevertheless admit of the possibility of relief under Rule 60(b)(6), and finally whether relief under Rule 60(b)(6) is appropriate.
United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1967); United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir. 1971).
Erdoss, 440 F.2d at 1223.
As an initial matter, the neglect of the State's lawyers appears to come within Rule 60(b)(1), in which event relief would be barred by the State's failure to seek it within one year. But that Rule permits relief, even if it is timely sought, only with respect to "excusable neglect." "Excusable neglect for failure to comply with a procedural rule may be found to exist when 'the language of a rule is ambiguous or susceptible to multiple interpretations,' but 'failure to follow the clear dictates of a court rule will generally not constitute such excusable neglect.'" It rarely will be found with respect to the "failure to follow the clear dictates of a court rule." Indeed, the Circuit has held that "a mere palpable oversight or administrative failure generally has been held to fall short of the necessary showing" of excusable neglect in failing to file a timely notice of appeal.
SEC v. Coletti, 162 F.3d 1148, 1998 WL 650254, at *2 (2d Cir. 1998) (quoting Canfield v, Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir. 1997)).
Canfield, 127 F.3d at 250.
In re O.P.M. Leasing Servs.Inc., 769 F.2d 911, 916-17 (2d Cir. 1985) (quoting 9 MOORE'S FEDERAL PRACTICE ¶ 204.13[1.-3], at 4-97-98 (2d ed. 1985) (internal quotation marks omitted)). Accord 12 MOORE'S FEDERAL PRACTICE § 60.41(1)(c)(iii), at 60-104 (3d ed. 2011) ("Although no court has stated that it is per se inexcusable neglect, ignorance of most normal procedural requirements has usually been ruled to be inexcusable.")
Here, counsel for the State failed to inform themselves about the decision in this case, and they admit that this failure was negligent. Their neglect caused the State not to know that this Court had granted conditional habeas relief to petitioner on September 27, 2010. It caused the State not to inform the Court that the Second Circuit had vacated its holding that the PFO statute was unconstitutional. It caused the State to sacrifice its rights to seek an extension or reopening of time within which to appeal. Then, almost a year after the Second Circuit's decision in Portalatin, the State brought this motion, which it could and should have filed much earlier.
Transcript, October 18, 2011 ("Tr."), at 3 (MS. STEWARD: Your Honor, we were negligent in failing to look to check the docket . . . .").
The State argues that it deserves relief because any delay was caused by the Clerk's failure to give it written notice of this Court's September 27, 2010 order. But the State had no right to rely on the Clerk to do so. The Court's ECF Case Filing Rules and Instructions as well as the ECF log-in screen stated clearly that "it remains the duty" of counsel to "regularly review the docket sheet of the case." Individual Practices of the undersigned specified further that "counsel are responsible for knowledge of all orders entered on the docket." The fact that the Clerk of Court allegedly never sent notice to the State is thus no excuse. In any case, the Second Circuit has held that neglect is not excusable for purposes of Rule 60(b)(1) when "a party fails to act with diligence." At oral argument, counsel for the State admitted that they failed to act with diligence in that they did not check the docket for more than a year. In view of this Court's repeated admonitions to the Bar to keep informed of all orders, that is an understatement.
United States District Court, Southern District of New York, Electronic Case Filing Rules & Instructions, available at http://www.nysd.uscourts.gov/ecf/rules_040411.pdf; United States District Court, Southern District of New York, CM/ECF Login, https://ecf.nysd.circ2.dcn/cgi-bin/ShowIndex.pl..
Hon. Lewis A. Kaplan, Individual Rules of Practice, at 4, http://www.nysd.uscourts.gov/cases/show.php?db=judge_ info&id=121 (emphasis in original).
State St. Bank & Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 177 (2d Cir. 2004) (citations omitted); see also 12 MOORE'S FEDERAL PRACTICE § 60.41[1][c][ii], at 60-90 (3d ed. 1997) ("Courts repeatedly deny [60(b)(1) relief] when they find that the facts and circumstance[s] demonstrate a lack of diligence in pursuing or defending litigation.").
Tr. at 9 ("I take responsibility on behalf of our office for the mistake in not checking the docket and seeing that the mandate had been - that the judgment had been entered."); see id. at 10-11 ("We can look at the docket; we do have access to check the docket. And we do take responsibility for our failure to do so.").
This conclusion is bolstered by Rule 77(d)(2), which states that the "lack of notice of entry does not affect the time for appeal or relieve - or authorize the court to relieve - a party for failing to appeal within the time allowed, except as allowed by Federal Rule of Appellate Procedure 4(a)." Just as lack of written notice from the Clerk of Court cannot relieve a party from compliance with the time limitations associated with filing an appeal, the alleged lack of written notice may not be used to justify the State's lack of diligence or the extraordinary delay here. Accordingly, the State is not entitled to relief under Rule 60(b)(1). As its failures were inexcusable, the one-year time limit on Rule 60(b)(1) motions is immaterial. But even if the failures were excusable, the motion, to the extent it might have been premised on Rule 60(b)(1), would be untimely.
Given the Circuit's mutual exclusivity language in earlier cases, the conclusion that relief is foreclosed under Rule 60(b)(1) should be dispositive of the Rule 60(b)(6) application. Nevertheless, "[c]ourts have occasionally granted a Rule 60(b)(6) motion to a party where his or her lawyer, by neglecting the case entirely, was guilty of gross negligence." That line of cases has been criticized sharply and is of debatable authority. In any case, however, such relief "is reserved for extraordinary circumstances or where the judgment may work an extreme and undue hardship." It "may not be used as a substitute for appeal."
Stephanopolous v. City of New York, 299 Fed. Appx. 49, 50 (2d Cir. 2008)) (citing cases).
11 MOORE'S FEDERAL PRACTICE § 60.48[4][b].
McPhatter v. Cribb, 125 F.3d 844, 1997 WL 615955 (2d Cir. 1997) (internal quotation marks and citation omitted).
United Airlines, Inc. v. Brien, 588 F.3d 158, 176 (2d Cir. 2009) (quoting Matarese v. LeFevre, 801 F.2d 98, 101 (2d Cir. 1986)).
In this case, the practical effect of granting Rule 60(b)(6) relief would be to give the State the benefit of the appeal that it negligently failed to take. The circumstances here are not extraordinary in any sense that the Circuit has used in connection with Rule 60(b)(6). The plight in which the State finds itself is the result of rather mundane, albeit serious, neglect by its lawyers of a case that the State in other respects has litigated hotly for more than five years.
See also 11 MOORE'S FEDERAL PRACTICE §§ 60.48[3][b]-[c] (arguing that "extraordinary circumstances" usually means lack of fault by the movant and that fault on the part of the movant usually is inconsistent with the existence of "extraordinary circumstances").
Nor does the fact that the en banc decision in Portalatin reversed the holding upon which this Court relied alter this conclusion. The Supreme Court and the Second Circuit have held that "[i]ntervening developments in the law by themselves rarely constitute the extraordinary circumstances required for relief under Rule 60(b)(6) . . . ."
Agostini v. Felton, 521 U.S. 203, 239 (1997); see Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757 (2d Cir. 1986).
In an effort to avoid this principle, the State argues that the Besser decision upon which this Court relied "was not final" because the mandate had not issued. As we have seen, however, the mandate in Besser itself had issued long before this Court ruled. While petitions for rehearing were pending in some of its companion cases, the fact remains that the State did nothing between October 18, 2010, when the Portalatin en banc decision came down, and October 12, 2011. It was fully aware of Portalatin when it allowed its time to (1) appeal, (2) seek an extension of time to appeal, and (3) apply for relief under then FED. R. APP. P. 4(a)6) to expire. None of these lapses can be excused by an intervening change in the law. None was an extraordinary circumstance.
DI 24, at 5.
Finally, even if the State had satisfied Rule 60(b)(6)'s first requirement of "extraordinary circumstances," the Court would deny relief here because a Rule 60(b)(6) motion "must be made within a reasonable time." When courts in the Second Circuit consider whether a Rule 60(b)(6) motion is timely, "we must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay."
FED. R. CIV. P. 60(c)(1). This requirement that a Rule 60(b)(6) motion must be made within a reasonable time does not exist in the mandate recall context. Accordingly, even if respondents satisfied the Sargent test, Rule 60(b)(6) relief would still be unavailable.
PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983); see also Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n.8 (2d Cir. 2006) ("[A] Rule 60(b)(6) motion requires extraordinary circumstances which typically do not exist where the applicant fails to move for relief promptly.") (internal quotation marks omitted).
Here, the State's Rule 60(b)(6) motion was filed more than a year after this Court's September 27, 2010 order, despite the facts that its counsel were responsible for knowing about all orders filed on the electronic docket and have acknowledged that they erred in failing to check the docket. Although Rule 60(b)(6) relief may be appropriate after significant delays in certain circumstances, the State has offered no reasonable justification for its delay here. Thus, the State is not entitled to Rule 60(b)(6) relief for the additional reason that its motion was not filed within a reasonable time.
See, e.g., Tr. at 10-11.
FED. R. CIV. P. 60(c)(1). --------
Conclusion
The State's negligent failures here have been egregious. Fair play demands that the State be held responsible for its extraordinary negligent. Furthermore, any benefit to petitioner from the denial of this motion probably would be small. Petitioner has served over 13 years in prison and could be released in less than 2 years even if this Court granted the State's motion.
The motion for relief pursuant to Rule 60(b)(6) [DI 20] is denied. Petitioner shall be released in accordance with this Court's September 27, 2010 order. This direction is stayed until 2:00 p.m. on December 30, 2011.
SO ORDERED. Dated: December 23, 2011
/s/_________
Lewis A. Kaplan
United States District Judge
(The manuscript signature above is not an image of the signature or the original document in the Court file.)