Opinion
No. 91 Cr. 310 (SAS).
January 19, 2006
George Espinal, Fort Dix, NJ, Plaintiff (Pro Se).
Reed Michael Brodsky, Assistant United States Attorney, New York, NY, For Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On October 30, 2004, George Espinal filed a motion for relief from judgment pursuant to Rules 60(b)(4) and 60(b)(5) of the Federal Rules of Civil Procedure. In various supplemental submissions, Espinal has also raised arguments based on Rule 60(b)(6) and on recent Supreme Court jurisprudence. For the reasons explained below, Espinal's motion is denied.
The facts are taken from the submissions of the parties and are undisputed unless otherwise noted.
Following a jury trial before Judge Pierre Leval, then of the Southern District of New York, Espinal was convicted on six counts of racketeering, conspiracy, possessing automobiles with altered vehicle identification numbers ("VINs") and altering VINs. On April 24, 1992, Espinal was sentenced under the Sentencing Guidelines effective November 1, 1990. The court's calculations included enhancements for use of a firearm, restraint and injury of the garage attendants, the value of the stolen vehicles, obstruction of justice, and Espinal's leadership role. The court found that Espinal fell into criminal history category II and sentenced him to 300 months in prison.
On December 21, 1992, Espinal's conviction was affirmed by the Second Circuit on direct appeal. Espinal subsequently brought his first motion to vacate his conviction under section 2255 of Title 28 of the United States Code, which was denied on October 31, 1994. The Second Circuit affirmed the denial on September 15, 1995.
See United States v. Espinal, 981 F.2d 664 (2d Cir. 1992).
See Espinal v. United States, 122 F.3d 1055 (2d Cir. 1995).
On August 21, 2003, the Second Circuit denied Espinal's motion to authorize the District Court to consider a successive application pursuant to section 2255. On June 1 and July 20 of 2004, Espinal filed a successive motion and a motion to supplement the successive motion, which were both denied by the Second Circuit on September 23, 2004.
See Espinal v. United States, No. 04-4557-op (2d Cir. Sep. 23, 2004).
On October 30, 2004, Espinal filed the instant motion seeking relief from judgment pursuant to Rules 60(b)(4) and 60(b)(5). The government responded on November 18, 2004. On January 26 and March 8, 2005, Espinal submitted a "letter motion for review of sentence," relying on the Supreme Court's recent decision in United States v. Booker, to which the government responded on March 1, 2005. On August 8, 2005, Espinal filed a "Motion to Supplement and Clarification of his Application for Relief from Judgment Pursuant to Rule 60(b) (4) (5) and (6) of Federal Rule [sic] of Civil Procedure." The government filed a letter in opposition on August 29, 2005, and Espinal submitted a response on September 29, 2005.
543 U.S. 220 (2005) (holding that the mandatory aspect of the Sentencing Guidelines ran afoul of the Sixth Amendment's jury trial requirement).
III. LEGAL STANDARD
A. Rule 60(b) Motion for Relief from Judgment
Rule 60(b) provides that a court may relieve a party from a final judgment for the following reasons:
(1) mistake, inadvertence, surprise, or excusable 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 (whether heretofore denominated intrinsic or extrinsic), 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.
The Rule also requires that "[t]he motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken."
Id.
In the Second Circuit "`[i]t is well established . . . that a proper case for Rule 60(b)(6) relief is only one of extraordinary circumstances, or extreme hardship.'" A Rule 60(b) motion is not a substitute for appeal. Accordingly, Rule 60(b) motions that simply attempt to relitigate issues and thereby circumvent the appellate process are routinely dismissed.
Harris v. United States, 367 F.3d 74, 81 (2d Cir. 2004) (quoting United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977) (citations and quotation marks omitted)).
See Central Vt. Pub. Serv. Corp. v. Herbert, 341 F.3d 186, 190 (2d Cir. 2003) (citing Nemaizer v. Baker, 793 F.2d 58, 61-62 (2d Cir. 1986)).
See, e.g., Hernandez v. United States, No. 99 Civ. 4303, 2000 WL 744148, at *1 (S.D.N.Y. June 8, 2000) (denying Rule 60(b) motion where "[t]he vast bulk of [movant's] argument constitutes nothing more than a futile effort to have this Court revisit its Opinion"); Batac Dev. Corp. v. B R Consultants, Inc., No. 98 Civ. 721, 2000 WL 307400, at *3 (S.D.N.Y. Mar. 23, 2000) (holding that a party "may not . . . use Rule 60(b) as a substitute for appeal or to relitigate matters already resolved by the court adversely to that party.").
In the habeas context, relief under Rule 60(b) is available "only when the Rule 60(b) motion attacks the integrity of the habeas proceeding and not the underlying criminal conviction." If one part of a motion is a valid attack on the habeas proceeding and another part attacks the underlying conviction, the Second Circuit has prescribed two acceptable courses for district courts. First, courts may simply deny the portion believed to present new attacks on the conviction because it is beyond the scope of Rule 60(b). Second, they may choose to "recharacterize a portion of the 60(b) motion as a second or successive collateral attack and transfer it" to the Second Circuit, but only after "the prisoner has been informed of the district court's intent to transfer and afforded a sufficient opportunity to avoid the transfer by withdrawing" portions of the motion.
Harris, 367 F.3d at 77 (citing Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001)).
See id. at 81 n. 5; Gitten v. United States, 311 F.3d 529, 532-34 (2d Cir. 2002).
See Gitten, 311 F.3d at 534.
Id.
B. Second or Successive Motion for Habeas Relief
In order for a second or successive motion for habeas relief to be considered under section 2255, the Court of Appeals must first certify that the petition contains:
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255.
IV. DISCUSSION
In the various submissions made by Espinal to this Court prior to September 2005, he raised the following arguments: (1) the government attorney perpetrated a fraud upon the district court that tried and sentenced Espinal; (2) the trial court made a clerical error; (3) the trial court improperly enhanced Espinal's sentence; (4) Espinal's trial counsel provided ineffective assistance in violation of the Sixth Amendment; (5) the trial court's judgment should be voided; and (6) the trial court's enhancements violated Blakely v. Washington and United States v. Booker. All of these arguments fail because they attack Espinal's underlying conviction rather than his habeas proceeding.
542 U.S. 296 (2004) (holding that the Sixth Amendment prohibited sentences greater than the maximum sentence a judge could impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant).
As noted earlier, this Court can deny these portions of the 60(b) motion or convert them into an application for a successive petition to vacate Espinal's underlying conviction. The second course would be an exercise in futility. All of these arguments have already been reviewed and rejected by the Second Circuit Court of Appeals, except for those that rely on Blakely and Booker. And the Second Circuit has held that it will not grant a federal prisoner authority to file a second or successive petition to vacate based on either Blakely or Booker absent an explicit Supreme Court pronouncement making either case retroactive on collateral review. Because there has been no such pronouncement, these arguments are also unavailing. Accordingly, in order to avoid the wasteful relitigation of meritless arguments, I hereby deny the above portions of Espinal's motion as beyond the scope of Rule 60(b).
See Gitten, 311 F.3d at 534.
See Espinal v. United States, 122 F.3d 1055 (2d Cir. 1995).
See Green v. United States, 397 F.3d 101 (2d Cir. 2005).
There appears to be one additional argument in connection with Espinal's motion, which he set forth in his final submission on September 29, 2005. In that letter, Espinal claimed for the first time that the government attorney committed a fraud upon the court during Espinal's habeas proceeding. However, under Rule 60(b), a motion based on a claim of fraud must be raised within one year of the challenged decision. Espinal's section 2255 motion was denied in 1994 and the denial was affirmed in 1995. As a result, Espinal's final argument is time-barred.
See 9/29/05 Letter from George Espinal, at 2 ("The Government attorney was very well aware of petitioner's counsel [sic] misinformation to the Court, and never revealed it, but the Government attorney affirmed the misinformation given by petitioner's counsel and continue [sic] to use the misinformation into [sic] petitioner's 2255 thereby committed [sic] fraud.").
V. CONCLUSION
For the foregoing reasons, Espinal's motion is denied. A remaining issue is whether to grant a certificate of appealability (COA). For a COA to issue, the petitioner or plaintiff must make a "substantial showing of the denial of a constitutional right." A substantial showing does not require a plaintiff to demonstrate that he would prevail on the merits, but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.'" Plaintiff has made no such showing. Accordingly, I decline to grant a certificate of appealability. The clerk of the court is directed to close the motion [Nos. 199-205 on the docket sheet] and this case.
See Kellogg v. Strack, 269 F.3d 100, 102 (2d Cir. 2001) ("We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition.").
Middleton v. Attorneys General of the States of N.Y. Pa., 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted)).
SO ORDERED.