Opinion
00 CIV. 9100 (DLC), 99 CR 380 (DLC)
April 22, 2002
Maurice Carl Gitten, #45946-054, Otisville, NY, Petitioner, Pro Se.
Andrew Ceresney, Assistant United States Attorney, New York, NY, Attorney for the Respondent.
OPINION AND ORDER
On November 20, 2000, Maurice Gitten ("Gitten") submitted a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 ("Section 2255") challenging his 1999 federal conviction and sentence for illegal reentry after deportation. On December 18, 2001, Gitten moved pursuant to Rule 60(b), Fed.R.Civ.P., to vacate this Court's April 9, 2001 denial of his Section 2255 petition. For the reasons that follow, Gitten's Rule 60(b) motion is denied.
Gitten's petition was dated November 20, received by the Pro Se Office on November 27, and filed on November 30.
BACKGROUND
On August 24, 1984, a warrant for Gitten's arrest and an Order to Show Cause why he should not be deported were issued because of his prior Convictions for robbery in the first degree in 1977, and grand larceny in the second degree in 1982. Gitten was deported to Jamaica on April 5, 1988, and he returned to the United States illegally in September 1988. On January 11, 1991, a second warrant and Order to Show Cause were issued on the ground that Gitten had illegally reentered the United States after deportation. Gitten was redeported to Jamaica on September 3, 1992.
Gitten was "found" in the United States by the INS on February 20, 1997, when the INS was informed that Gitten had been convicted in 1993, in South Carolina. Gitten was arrested on February 12, 1999, and, on April 14, 1999, charged in a one-count indictment with illegal reentry after deportation under 8 U.S.C. § 1326 (a) and (b)(2) ("Section 1326"). Gitten pleaded guilty on August 11, 1999, and on December 22, 1999, he was sentenced principally to seventy-seven months in prison. Gitten's conviction and sentence were affirmed on November 1, 2000.United States v. Gitten, 231 F.3d 77 (2d Cir. 2000)
Gitten filed a petition for habeas corpus on November 20, 2000. Gitten argued that (1) his convictions prior to 1990 should not have been considered aggravated felonies for sentencing purposes; (2) his appellate counsel was ineffective for not raising this argument on direct appeal; and (3) his conviction should be vacated because he had reentered the country more than five years before he was "found" and arrested. Gitten's petition was denied on April 9, 2001. United States v. Gitten, No. 00 Civ. 9100 (DLC), 2001 WL 363052 (S.D.N.Y. Apr. 10, 2001). The denial declined to issue a certificate of appealability. On May 16, 2001, Gitten appealed the denial of his Section 2255 petition. The Second Circuit construed this appeal as a motion for a certificate of appealability and denied the motion on August 24, 2001.
On September 28, 2001, Gitten moved pursuant to Rule 60(b), Fed.R.Civ.P., to vacate his conviction. By letter dated November 20, 2001, and received by the Court on November 26, 2001, Gitten moved to withdraw this motion. By Order of November 26, the Court granted his motion to withdraw.
On December 18, 2001, Gitten submitted the instant Rule 60(b) motion to vacate the decision denying his petition for a writ of habeas corpus. In his Rule 60(b) motion, Gitten argues that the decision denying his Section 2255 petition is void because the Court did not have before it arguments that would establish that the Court lacked jurisdiction to take his plea or impose sentence in the underlying criminal proceedings. He argues that the Court lacked jurisdiction because his deportation orders were unlawful and thus could not serve as a valid basis for conviction under Section 1326. Gitten maintains that his deportation proceedings were unlawful because he was deprived of his right to judicial review for the following reasons: (I) he was not provided with notice of his right to appeal; (2) the Immigration Judge ("IJ") failed to ask whether he had received such a notice; (3) his counsel did not advise him of his right to appeal; and (4) the IJ failed to inform him during his 1988 deportation proceedings of his eligibility to apply for a waiver of deportation under Section 212(c) of the Immigration and Nationality Act and thereby deprived him of a basis on which he could have appealed the deportation order.
Gitten maintains that he would have been eligible for Section 212(c) relief because the crimes for which he had been deported did not constitute "aggravated felonies" at the time of his deportation hearing. He also appears to argue that he was not informed of the possibility of relief under Section 212(c) because he was a minor.
He also maintains that his deportation proceedings were unlawful because he was never served with Form I-200, Form 1-294, or notice of the conduct prohibited by Section 1326.
The Government argues in opposition that (1) Gitten's motion is a "second or successive petition" under 28 U.S.C. § 2244 (b)(1) because it raises arguments he did not raise in his Section 2255 petition; (2) he waived his right to challenge the validity of his deportations by pleading guilty; (3). he has not met the criteria under 8 U.S.C. § 1326 (d) for collaterally challenging the deportation orders; (4) he was informed of his right to appeal; and (5) at the time of his deportation proceedings, service of a warrant was not required to commence such proceedings.
The Government notes that Gitten's waiver of his right to appeal is indicated on both orders of deportation, Gitten was asked in his hearings whether he had been served with written notice of his appeal rights, he stated that he had been served with the notice, and the IJ orally informed him of his right to appeal. The Government has obtained a recording of the 1992 deportation proceeding.
DISCUSSION
Although Gitten's motion under Rule 60(b) to vacate the denial of his petition for habeas corpus raises arguments not raised in his Section 2255 petition, there is authority indicating that this motion should not be treated as a "second or successive" petition. Rodriguez v. Mitchell, 252 F.3d 191, 200-01 (2d Cir. 2001); see also Kellogg v. Strack, 269 F.3d 100, 102 n. 2 (2d Cir. 2001), cert. denied, 122 S.Ct. 1306 (2002); Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001). InRodriguez, the Second Circuit held that a Rule 60(b) motion to vacate a judgment denying a Section 2254 habeas petition was not a successive petition and should "be treated as any other motion under Rule 60(b)."Rodriguez, 252 F.3d at 198. The court reasoned that, while the ultimate objective of the motion was to vacate the underlying state court conviction, the motion would in fact only "reinstate a previously dismissed petition for habeas." Id. The court observed that the ground urged by the petitioner in Rodriguez related to the "integrity of the federal habeas proceeding, not to the integrity of the state criminal trial." Id. at 199.
Before a prisoner may bring a second petition, a "panel of the appropriate court of appeals" must certify, pursuant to 28 U.S.C. § 2244, 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.
Id. § 2255 ¶ 8. A court in this district faced with a second or successive petition is required to transfer it to the Second Circuit for authorization Corrao v. United States, 152 F.3d 188, 190 (2d Cir. 1998).
The distinction between a direct challenge to a conviction and the challenge to a denial of a habeas petition may be harder to draw in the context of a Section 2255 petition, where both the conviction and the denial of the habeas petition lie in the same court, than in the context of a Rule 60(b) motion addressed to a decision on a Section 2254 petition. In Rodriguez, the petitioner's Rule 60(b) motion asserted that fraudulent representations had been made to the habeas court and had deprived the petitioner of evidence necessary to corroborate his contentions during a hearing on his petition. Id. at 196. In such circumstances, the Rule 60(b) motion directly implicated the "integrity of the federal habeas proceeding." Id. at 199. It appears then, that the first task of a court receiving a Rule 60(b) motion attacking a judgment rendered on the merits of a habeas petition is to determine whether the motion is addressed to the integrity of the federal habeas proceedings, or is instead a vehicle for filing a second or successive petition.
Gitten has moved to vacate the decision denying his habeas petition pursuant to subsections (4) and (6) of Rule 60(b) Only one of the Gitten's arguments implicates the integrity of his habeas proceedings. Gitten argues that the decision denying his petition must be vacated pursuant to subsection (4) or (6) because certain arguments regarding the validity of his underlying conviction were not presented to the habeas court. To prevail, then, Gitten must show that the fact that these arguments were not presented to the habeas court means that the decision is void or presents extraordinary circumstances warranting relief from the judgment.
Subsection (4) allows a judgment to be vacated if it "is void." Fed.R.Civ.P. 60(b)(4). Subsection (6) allows a judgment to be vacated for "any other reason justifying relief from the operation of the judgment." Id. 60(b)(6). A motion for reconsideration under Rule 60(b) (4) or (6) must be made within "a reasonable time." Id. 60(b). The Court denied his habeas petition on April 9, 2001, and Gitten moved to vacate on December 18, 2001.
A motion to declare a judgment void pursuant to Rule 60(b)(4) may rest on a claim that the court "lacked jurisdiction over the parties, the subject matter, or both." Beller Keller v. Tyler, 120 F.3d 21, 23 (2d Cir. 1997). A judgment also may be "void if a court with jurisdiction has acted in a manner inconsistent with due process of law." Id. (citation omitted).
Gitten does not claim that the Court, in denying his habeas petition, lacked jurisdiction over the parties or the subject-matter; rather, he has argued only that the denial of his petition is void because the Court did not then have before it certain additional information and arguments that could establish the invalidity of his conviction. "[A] argument based on hindsight regarding how the movant would have preferred to have argued its case does not provide grounds for Rule 60(b) relief . . . nor does the failure to marshall all known facts" and arguments in support of the prior motion. Paddington Partners v. Bouchard, 34 F.3d 1132, 1147 (2d Cir. 1994) (citation omitted) The Court did not act in a manner inconsistent with due process of law by failing to consider arguments that Gitten did not raise in support of his habeas petition.
Gitten also seeks to vacate the denial of his Section 2255 petition pursuant to Rule 60(b)(6). Relief under Rule 60(b)(6), however, "is appropriate only in cases presenting extraordinary circumstances,"Rodriquez, 252 F.3d at 201 (citation omitted), "or where the judgment may work an extreme and undue hardship." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994) (citation omitted). The fact that the Court did not have before it arguments Gitten now advances does not constitute an extraordinary circumstance warranting relief. Nor does denial of this motion work an extreme or undue hardship on Gitten. He has already been given an opportunity for a direct appeal from his conviction and his first petition for a writ has been adjudicated. His new attacks on his conviction will be treated as a second petition and transferred to the Court of Appeals.
CONCLUSION
For the reasons stated above, Gitten's Rule 60(b) motion for reconsideration of this Court's denial of his Section 2255 petition on the ground that certain arguments were not presented to the habeas court is denied.
A petitioner is required to obtain a certificate of appealability before he may appeal the dismissal of a Rule 60(b) motion challenging the validity of a denial of a petition for a writ of habeas corpus.Kellogg, 269 F.3d at 103. I find that the petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Id. at 104. In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Because Gitten has also raised claims that implicate only the validity of his underlying conviction, the remainder of his petition is a second or successive Section 2255 petition. The Clerk of Court is directed to transfer the case to the United States Court of Appeals for the Second Circuit for consideration of certification pursuant to 28 U.S.C. § 2244. Corrao, 152 F.3d at 190. The Clerk of Court shall close the case.