Opinion
03 Civ. 6722 (JFK), 99 Cr. 73 (JFK).
January 10, 2007
For Petitioner, JOSE URENA, pro se, Waymart, PA.
For the Respondent, MICHAEL J. GARCIA, United States Attorney for the Southern District of New York, New York, New York, Of Counsel: AUSA Lauren M. Ouziel.
OPINION AND ORDER
Jose Urena moves for reconsideration of the Court's denial of his 28 U.S.C. § 2255 ("§ 2255") petition and requests a certificate of appealability. For the reasons that follow, the petition and the request for a certificate of appealability are both denied.
Background
On February 22, 2000, Urena was convicted, following a jury trial, of trafficking in narcotics and of conspiracy to traffic in narcotics, in violation of Title 21 U.S.C. §§ 841, 846, and 851. Judge Schwartz sentenced Urena to 270 months imprisonment on February 14, 2001. The judgment of conviction was affirmed by the United States Court of Appeals for the Second Circuit, and Urena's application for a writ of certiorari was denied on June 28, 2002.
Judge Schwartz passed away in 2003, and his criminal docket was reassigned to me.
On July 14, 2003, Urena filed a habeas petition claiming (1) that the District Court lacked jurisdiction to impose a sentence in this case under 21 U.S.C. § 851 or under § 4B1.1 of the United States Sentencing Guidelines, and (2) that his trial and appellate counsel were ineffective. The Government urged the Court to dismiss the petition as untimely because Urena filed the petition after the expiration of the one-year limitations period established by the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In reply, Urena argued that his counsel is responsible for his untimeliness, and that the limitations period should be tolled because "his counsel deceived him about when the certiorari petition was denied." (Pet. Brief 3.) Urena stated that, sometime between November and December of 2002, he asked his appellate attorney — who was no longer representing him — when his petition for certiorari had been denied. Urena contended that the attorney informed him that he was "pretty sure" the certiorari was denied "sometime around July or August," but that he would have to look in Petitioner's file which had been put away as a closed case.
In January 2003, Petitioner inquired again of the attorney whether he had found the proof of the denial of certiorari, and the attorney then stated he was "sure" it was in mid-August 2002, but he "would send petitioner a copy of its proof" as soon as possible. Petitioner did not hear back from the attorney again, and, deciding that he wanted to be on the "safe side," he prepared and filed his § 2255 petition "before the August date." It was not until July 21, 2003, that petitioner received proof from the attorney that his petition for certiorari was denied on June 28, 2002, and printed in the August 2002 Lawyers Edition publication of Supreme Court decisions. (See Aff. of Jose Urena, dated September 1, 2003 ("Urena Aff."))
On July 13, 2005, the Court denied Urena's petition as untimely because Petitioner could not establish that exceptional circumstances had prevented him from filing on time or that he diligently pursued his claim. Petitioner filed the instant motion for reconsideration on September 10, 2005.
Legal Standard
Under Federal Rule of Civil Procedure 60(b), a court may reconsider a final judgment only in one of the following circumstances:
(1) mistake, inadvertence, surprise, or exusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . . misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
Rule 60(b) may be used to move for reconsideration of the denial of a habeas petition "only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004). When a petitioner uses a 60(b) motion to attack the underlying criminal, a district court may transfer the motion to the Court of Appeals or deny the motion. Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002).
Analysis
Petitioner raises three arguments in support of his motion for reconsideration. First, he argues that the Court failed to consider Shepard v. United States, 125 S. Ct. 1254 (2005), when it denied petitioner's § 2255 petition. Under Rule 60(b)(5), a Court may reconsider a judgment if "a prior judgment upon which [the decision was] based has been reversed or otherwise vacated . . ." Petitioner's reliance on Shephard, 125 S. Ct. 1254 to satisfy 60(b)(5) is misplaced. Shephard is an inapposite case that does not concern statute of limitations for habeas petitions. As such, the Court did not rely on any proposition in its denial of Petitioner's habeas petition that was reversed of otherwise vacated by Shephard.
Second, Petitioner argues that Judge Schwartz erred by failing to inform Petitioner that a challenge not raised prior to sentencing may not be raised in a subsequent challenge to sentence. This contention attacks the underlying criminal conviction rather than the prior habeas proceedings. It is beyond the scope of 60(b).
Third, Petitioner claims his counsel was ineffective because he failed to inform petitioner of the statute of limitations for filing initial habeas petitions. This ground does not fit within any of the first 5 grounds for 60(b) reconsideration, nor does it satisfy 60(b)(6), allowing a Court to reconsider for "any other reason justifying relief from the operation of the judgment." This ground is essentially the same ground on which Petitioner's original habeas petition was based. The Court already considered the ground in its initial habeas decision and deemed it without merit.
Conclusion
Petitioner has not raised any arguments warranting reconsideration under Rule 60(b). As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253;see Perez, 129 F.3d at 259-60; Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962). This case is closed and the Court directs the clerk of the court to remove this case from the Court's active docket.
SO ORDERED.