The opinion of the court was delivered by: Cote, District Judge.
The original petition for a writ of habeas corpus filed by
this prisoner was timely. Thereafter, guided by an Order of this
Court, he voluntarily dismissed the petition to exhaust
additional claims. After promptly pursuing state court remedies,
he even more promptly refiled his petition which, principally
because of the Supreme
Court's intervening decision in Duncan v. Walker,
533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), is untimely.
Through an Opinion and Order of January 24, 2002 (the "January
24 Opinion"), the Court appointed counsel for the petitioner,
required the petition to be served on the respondent, and
invited the parties to submit briefing. Devino v. Duncan, No.
00 Civ. 9044(DLC), 2002 WL 91615 (S.D.N.Y. Jan. 24, 2002).
Because the Court concludes that the dismissal of the original
petition should be vacated pursuant to Rule 60(b)(6),
Fed.R.Civ.P., on account of the change in the law effected by
Duncan, DeVino's original petition is reinstated.
The events leading to the filing of the pending petition are
set out in this Court's prior opinion, familiarity with which is
assumed. See Devino, 2002 WL 91615. Accordingly, only those
events necessary to the analysis which follows are described
The petitioner's conviction for two counts of murder in the
second degree became final on March 11, 1999, which was 90 days
after the New York Court of Appeals denied him leave to appeal.
Under Title I of the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), a prisoner in state custody has one year
after the date his conviction becomes final in which to file a
habeas petition. 28 U.S.C. § 2244(d)(1). Two hundred and ninety
four days later, petitioner filed a petition for a writ of error
coram nobis in state court on the ground of ineffective
assistance of appellate counsel. The petition was denied on July
6, 2000. DeVino filed a petition for a writ of habeas corpus on
September 5, 2000,*fn1 which was timely because AEDPA's one
year limitations period was tolled during the pendency of
petitioner's coram nobis petition. 28 U.S.C. § 2244(d)(2);
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001). When
DeVino filed his federal petition, approximately eleven days of
the one year limitations period remained.
The petitioner then requested that his initial petition be
dismissed in order to permit exhaustion of state remedies. On
February 15, 2001, the Chief Judge of this district issued an
Order noting the petitioner's desire to withdraw his petition,
In light of AEDPA's one-year statute of limitations,
petitioner is granted thirty (30) days to inform the
Court whether he wishes to proceed with this action
or withdraw it. Petitioner should be aware that if he
withdraws the instant petition, he will have to file
a new petition at a later date; he will not be
allowed to "reopen" this proceedings [sic].
The petitioner confirmed his desire to withdraw the petition,
and the petition was voluntarily dismissed on March 20, 2001.
Thirty-three days after the federal petition was dismissed,
petitioner filed a motion pursuant to New York Criminal
Procedure Law §§ 440.10 and 440.20, which was denied on May 29,
2001. A motion filed on June 14, 2001, seeking leave to appeal
pursuant to New York Criminal Procedure Law § 460.15, was denied
on August 2, 2001. On August 15, 2001 — 13 days after the state
court proceedings had concluded — the instant petition was
As of the date the original petition was withdrawn, the Second
Circuit had held that 28 U.S.C. § 2244(d)(2) required tolling of
the one year limitations period during the pendency of a habeas
petition in federal court. Walker v. Artuz, 208 F.3d 357, 360
(2d Cir. 2000). Following the dismissal of DeVino's petition,
the Supreme Court reversed Walker, and held that the
limitations period is not tolled during the pendency of a
federal habeas petition. Duncan v. Walker, 533 U.S. 167, 121
S.Ct. 2120, 150 L.Ed.2d 251 (2001). Since the Supreme Court's
decision in Duncan, the Second Circuit has held that when a
district court confronts a mixed petition containing both
exhausted and unexhausted claims, the court should either: (1)
dismiss the petition in its entirety (as was done in this case),
or (2) dismiss only the unexhausted claims and stay the balance
of the petition. Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir.
2001). In Zarvela, the Second Circuit observed that entry of a
stay is appropriate in cases where dismissal "jeopardize[s] the
timeliness of a collateral attack," so long as it is conditioned
on the prompt initiation of proceedings by the petitioner in
state court, and a prompt return to federal court. Id. at 382
Had the district court stayed DeVino's original petition in
March of 2001, his habeas petition would be timely and capable
of review. Because of the voluntary dismissal of the original
petition, however, DeVino's pending petition is untimely by 221
days. If the time during the pendency of his first federal
petition is subtracted, his current petition is untimely by only
35 days since DeVino acted essentially within the time
constraints outlined in Zarvela. His collateral attack in
state court was filed no later than 33 days after the dismissal
of the federal petition, and this petition was filed less than a
month after the collateral attack was denied. The Second Circuit
has not yet addressed whether relief is appropriate when a
timely petition was dismissed before the Supreme Court's
decision in Duncan, based at least implicitly on the law as
described in Walker.
The respondent contends that there is no procedural mechanism
by which the petitioner may be afforded relief from the
dismissal of his first habeas petition. Rule 60(b) sets forth
the grounds on which a court can rescind or amend a final
judgment or order.*fn3 Rule 60(b) "should be broadly
construed to do substantial justice, yet final judgments should
not be lightly reopened." Nemaizer v. Baker, 793 F.2d 58, 61
(2d Cir. 1986) (citations omitted). Relief from a final judgment
under Rule 60(b) is "extraordinary judicial relief" and may be
granted "only upon a showing of exceptional circumstances."
Id. A motion seeking relief pursuant to Rule 60(b) is
addressed to the sound discretion of the district court. Id.
Rule 60(b)(6) "is properly invoked when there are extraordinary
circumstances justifying relief, when the judgment may work an
extreme and undue
hardship, and when the asserted grounds for relief are not
recognized in clauses (1)(5) of the Rule." Id. at 63 (citation
omitted); see also Rodriguez v. Mitchell, 252 F.3d 191, 201
(2d Cir. 2001); U.S. v. Int'l Bhd. of Teamsters, 247 F.3d 370,
391-92 (2d Cir. 2001); DeWeerth v. Baldinger, 38 F.3d 1266,
1272 (2d Cir. 1994). A motion for relief pursuant to
Rule 60(b)(6) must be made "within a reasonable time."*fn4
Rule 60(b), Fed.R.Civ.P.
The respondent first contends that the petitioner cannot
obtain relief from the voluntary dismissal of his first habeas
petition under Rule 60(b), because that dismissal was not a
"final judgment, order, or proceeding." Rule 60(b),
Fed.R.Civ.P. (emphasis supplied). A voluntary dismissal may be
treated as a final judgment for purposes of Rule 60(b). See,
e.g., Lehman v. U.S., 154 F.3d 1010, 1017 (9th Cir. 1998)
(denying Rule 60(b)(6) motion on other grounds); Smith v.
Phillips, 881 F.2d 902, 904 (10th Cir. 1989); Randall v.
Merrill Lynch, 820 F.2d 1317, 1321 (D.C.Cir. 1987). "Although a
voluntary dismissal without prejudice . . . does not have
preclusive effect on later claims, such a dismissal is a final
judgment in the sense that it ends the pending action." Walker
v. Dep't of Veterans Affairs, No. 94 Civ. 5591(MBM), 1995 WL
625689, at *1 (S.D.N.Y. Oct. 25, 1995) (permitting plaintiff to
proceed under Rule 60(b)). The Second Circuit has indicated that
a Rule 60(b) motion is an appropriate vehicle for reinstating a
previously dismissed habeas petition. See Rodriguez, 252 F.3d
at 198. The cases on which the ...