Opinion
96 Civ. 3429 (LMM)(AJP)
January 24, 2000
REPORT AND RECOMMENDATION
To the Honorable Lawrence M. McKenna, United States District Judge:
Petitioner Vincent Walker has moved for relief under Fed.R.Civ.P. 60(b). (Dkt. No. 15 in 96 Civ. 3429.) For the reasons set forth below, I recommend that the motion be DENIED.
PROCEDURAL BACKGROUND
On March 11, 1997, I recommended dismissal without prejudice of petitioner Walker's habeas petition as a "mixed" petition, i.e., because the "bulk of petitioner Walker's claims are not exhausted." (Dkt. No. 10 in 96 Civ. 3429.) Walker v. Miller, 959 F. Supp. 638, 643 (S.D.N.Y. 1997) (McKenna, D.J. Peck, M.J.). Walker agreed to dismissal without prejudice to allow him to exhaust the unexhausted claims. (Dkt. No. 14 in 96 Civ. 3429.) See also Walker v. Miller, 959 F. Supp. at 639. Judge McKenna adopted my Report and Recommendation on March 24, 1997. (Dkt. No. 13 in 96 Civ. 3429.) Walker v. Miller, 959 F. Supp. at 639.
Walker brought a second federal habeas petition, docketed in this Court as of January 28, 1999, entitled Walker v. Senkowski, 99 Civ. 0603. (See Dkt. No. 1 in 99 Civ. 0603.) On January 28, 1999, Chief Judge Griesa dismissed Walker's second federal habeas petition. (Dkt. No. 4 in 99 Civ. 0603.) Chief Judge Griesa noted that "the instant petition does not correct the deficiencies found in the earlier petition. There is no indication in petitioner's papers that he returned to state court in order to exhaust all available state remedies as set forth in the Court's prior order. In fact, only ground one [suppression of pretrial statements made during police interrogation] appears to be exhausted." (1/28/99 Order at 2.) Chief Judge Griesa informed Walker of the one-year limitation period for filing habeas corpus petitions pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (1/28/99 Order at 2.) Chief Judge Griesa instructed Walker that
As petitioner was not advised of the [AEDPA] one year limitation period in the Court's prior order, he may file a motion for reconsideration under docket number 96 Civ. 3429 (LMM) on the one exhausted ground pursuant to Rule 60(b) of the Federal Rules of Civil Procedures . . . . Whether the motion for reconsideration is granted will be at the discretion of the assigned judge.
Chief Judge Griesa's Order, and the judgment, denied Walker a certificate of appealability. (Dkt. No. 4 in 99 Civ. 0603: 1/28/99 Order at 3-4; Dkt. No. 5 in 99 Civ. 0603: Judgment.) Walker nevertheless filed a Notice of Appeal. (Dkt. No. 7 in 99 Civ. 0603.)
On or about May 11, 1999, Walker filed a Rule 60(b)(6) Motion in this action. (Dkt. No. 15 in 96 Civ. 3429.) The Motion indicates service on the Manhattan District Attorney's Office, but the Court's files do not contain any response from the District Attorney's Office.
The Notice of Motion and Affidavit are dated April 24, 1999; the Certificate of Service indicates mailing on April 30, 1999; the envelope is postmarked May 7, 1999; and the papers were received by the Court on May 11, 1999.
ANALYSIS
Walker's Rule 60(b) motion does not comply with Chief Judge Griesa's specific and clear instruction that such a motion could only be addressed to the originally exhausted claim. (Dkt. No. 4 in 99 Civ. 0603: 1/28/99 Order at 3, quoted on page 2 above.) Rather, Walker's present Rule 60(b) motion seeks: (a) vacation of the March 24, 1997 Order of Dismissal; (b) "reconsidering the properly exhausted claim raised in that petition that the statements petitioner allegedly made at the police precinct should have been suppressed; and (c) considering the ineffective assistance of appellate counsel claim petitioner returned to state court to exhaust available state court remedies on." (Dkt. No. 15 in 96 Civ. 3429: Notice of Motion at pp. 1-2, emphasis added); see also Walker 4/24/99 Aff. 66 1, 4-5 Ex. B.)
Walker's original habeas petition contained an unexhausted claim of ineffective assistance of trial counsel. (See Dkt. No. 1 in 96 Civ. 3429: Pet.) See also Walker v. Miller, 1997 WL 159958 at *2, *6. Walker's original petition did not contain an ineffective assistance of appellate counsel claim. Whatever the propriety of a Rule 60(b) motion with respect to an exhausted claim contained in a petition dismissed as a "mixed" petition, there is no basis to grant a Rule 60(b) motion with respect to a claim (here, ineffective assistance of appellate counsel) that was not ever contained in the original petition.
Accordingly, I recommend that the Court deny Walker's Rule 60(b) motion.
The Court need not now decide whether Walker should be granted Rule 60(b) relief if his current motion were withdrawn and he served a new motion limited to reconsideration as to the previously exhausted claim.
CONCLUSION
For the reasons set forth above, I recommend that the Court deny Walker's Rule 60(b) motion.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 ten (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 the Court, with courtesy copies delivered to the chambers of the Honorable Lawrence M. McKenna, 500 Pearl Street, Room 1640, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge McKenna. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
Respectfully submitted,