The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Frank Carlson seeks a certificate of probable cause to permit his appeal from my denial of a petition for habeas corpus to proceed pursuant to Fed.R.App.P. 22(b). For the reasons which follow, I decline to grant the certificate at this juncture, without prejudice to a further application for such a certificate if justified after action is taken on a further petition Carlson has indicated he will file.
Carlson was convicted in state court on November 20, 1984 of robbery, burglary and unlawful imprisonment. His conviction was affirmed by the Appellate Division, Second Department on February 18, 1992, Dkt. No. 90-04686, 91-00163. He sought federal habeas corpus relief under 28 USC § 2254. By memorandum order of January 25, 1993, I denied the petition but deferred entry of judgment for 45 days thereafter to permit petitioner to seek reconsideration if justified. Petitioner filed a motion for reconsideration which I denied on March 4, 1993; one of his principal claims related to failure to call an alleged alibi witness; the affidavit of that witness submitted by petitioner was inadequate to permit final disposition based on the underlying merits (as opposed to mere inadequacy of the preparation) of petitioner's challenge to his conviction.
Petitioner filed a notice of appeal on March 24, 1993 and, as indicated above, now seeks a certificate of probable cause. In his application for the certificate, petitioner states that he "is in the process of securing" a further affidavit from the alleged alibi witness to support "a new filing" of a further habeas petition.
A further petition should not automatically become the basis of repetitious appeals. This would constitute a potential abuse of the appellate process comparable to that created by repetitious petitions at the district court level sought to be discouraged by Congress in Rule 9. Repetitious appeals from rulings on federal habeas brought by state prisoners are contrary to the objectives set forth in Fed.R.Civ.P. 1, sentence 2,
as well as the Judicial Improvements Act of 1990, Pub. Law 101-650, 104 Stat. 5089, particularly 28 USC § 473. Sequential appeals challenging the same conviction amount to a campaign of attrition of against state and local prosecutors who must constantly reacquaint themselves with closed cases.
Petitioner's election, pursuant to leave granted as set forth above, to submit a further affidavit from the alleged alibi witness and to refile a petition for habeas relief on the same basic grounds already asserted, is also the functional equivalent of a timely motion for reconsideration based on further findings, or for a new trial pursuant to Fed.R.Civ.P. 52(b) or 59. Under Fed.R.App.P. 4(a)(4) such an application causes any prior notice of appeal to be of no effect, and restarts the time period for filing a new notice as of the time of the entry of an order determining the motion for reconsideration or denying the motion for a new trial. Rule 4(a)(4) avoids simultaneous or overlapping consideration of the same issues at the district court and appellate levels, precisely the effect which would be created by granting Carlson's application for a certificate of probable cause at the present juncture.
Procedural rules are created for the purpose of permitting the courts to further the objectives of equal justice under law, and of granting relief where called for by constitutional or statutory provisions. They are intended to administer, and should be utilized as a means of administering, justice on the merits.
Were there convincing evidence of a miscarriage of justice, it would become my duty to search for an appropriate means authorized by the procedural system to permit prompt appellate consideration of the issues presented. I do not find any such evidence here. Hence I am not persuaded that I should invoke the flexibility always present in procedural structures
to bypass the procedures which ordinarily produce the most reliable and just results.
Guidance may be obtained in these respects from the Congressional definitions of grounds for interlocutory appeals under 28 USC § 1292(b). Petitioner's request for a certificate of probable cause to permit his appeal to proceed pursuant to Fed.R.App.P. 22 is analogous to a request for an order permitting an application for an appeal prior to final judgment under § 1292(b). That section permits the district court to issue an authorizing order only if "there is substantial ground for difference of opinion" concerning a controlling question of law, and "an immediate appeal . . . may materially advance the ultimate termination of the litigation." I am unable to make any such finding in this case.
Petitioner's principal grounds for challenging his state court conviction have been discussed in greater detail in my memorandum orders dated ...