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August 13, 2002


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 here.

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, and stating:

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 filed.*fn2

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 (citation omitted).

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 ...

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