The opinion of the court was delivered by: Larimer, Chief Judge.
On October 22, 1999, I entered an order, in my role as Chief
Judge, striking Drew V. Tidwell ("Tidwell") from the roll of
attorneys authorized to practice before the federal courts in
the Western District of New York. That order, premised on Local
Rule 83.3, was entered based on notification from the Appellate
Division of the Supreme Court, Fourth Department, that Tidwell
had been disbarred from practice in New York.*fn1 The Fourth
Department order, entered September 17, 1999, indicated that
Tidwell had been disbarred following a felony conviction.
By motion filed August 18, 2000, Tidwell moved to vacate this
Court's order of disbarment. Tidwell brings this motion pursuant
to Federal Rule of Civil Procedure 60. Tidwell's motion to
vacate is in all respects denied.
There are several reasons, both procedural and substantive, as
to why the motion to vacate should be denied. The order at issue
here was a final order, and there is no question that Tidwell
received prompt notification of its entry. Tidwell now claims
that this Court committed legal error, and therefore, the order
should be vacated. The reasons advanced by Tidwell are certainly
not newly discovered and could have been put forth in an appeal
to the Second Circuit from this Court's order of disbarment. It
is clear that Rule 60 should not be utilized as a substitute for
appeal nor as a vehicle to circumvent any default concerning
appellate rights. See Nemaizer v. Baker, 793 F.2d 58, 61 (2d
Cir. 1986); Winnik v. Chater, 1998 WL 151041, at *2 (S.D.N.Y.
Apr. 1, 1998). Tidwell elected not to prosecute an appeal before
the Second Circuit, and for that reason alone, I believe that
the pending Rule 60 motion should be denied.
I also do not believe that Tidwell has advanced sufficient
reasons under Rule 60 to justify the relief he seeks. Rule 60(b)
provides that a court may relieve a party from a final judgment
for certain specific enumerated reasons. Those reasons include:
(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,
. . . 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.
Tidwell seeks relief under sections (1) and (4). First,
Tidwell claims that the Court erred as a matter of law in
entering the judgment of disbarment. Although some courts have
recognized that legal error may be considered a "mistake"
correctable under Rule 60(b)(1), there is a rather rigid time
frame for seeking such relief. In the Second Circuit, such
motions must be filed before the time allowed to appeal the
disputed judgment has lapsed, in this case thirty (30) days.
See In re Texlon, 596 F.2d 1092, 1100 (2d Cir. 1979);
International Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d
Tidwell's motion to vacate was not filed until August 18,
2000, approximately ten months after entry of the disputed
order. The reasons advanced by Tidwell for this delay are
insubstantial and do not warrant special consideration. The fact
that Tidwell was incarcerated during some of this period and
claims to have been under some distress is not a sufficient
reason to excuse the lengthy delay here.*fn2 Tidwell was an
experienced lawyer and certainly had the knowledge and ability
to file papers while incarcerated. This Court receives numerous
filings from incarcerated individuals on an almost daily basis.
Moreover, Tidwell participated in disbarment proceedings in both
the District of Columbia and Virginia during the term of his
Second, Tidwell claims that the Court's order must be vacated
because it is lacking in due process, and thus void under
Rule 60(b)(4). See, e.g. Beller & Keller v. Tyler, 120 F.3d 21, 23
(2d Cir. 1997) (Judgment may be void if court "acted in a manner
inconsistent with due process of law.") (citations omitted). In
essence, Tidwell challenges this Court's practice of exercising
based on proceedings in the state courts, especially the New
York state courts. This Court has found no other example of a
disbarment order that was vacated pursuant to Rule 60(b)(4).
However, in turning to the merits of this claim, the Court is
not convinced that, under the circumstances of this case, its
decision to exercise reciprocal discipline was improper.
A federal court should give effect to a state court's
imposition of discipline unless, from an intrinsic consideration
of the state record, one or all of the following conditions
1. That the state procedure, from want of notice or
opportunity to be heard, was wanting in due process;
2, that there was such an infirmity of proof as to
facts found to have established the want of fair
private and professional character as to give rise to
a clear conviction on our part that we could not,
consistently with our duty, accept as final the
conclusion on that subject; or 3, that some other
grave reason existed which should convince us that to
allow the natural consequences of the judgment to
have their effect would conflict with the duty which
rests upon us not to disbar except upon the
conviction that, under the principles of right and
justice, we were constrained so to do.
Selling v. Radford, 243 U.S. 46, 51, 37 S.Ct. 377, 61 L.Ed.
585 (1917); see also In re Edelstein, 214 ...