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COUNTS v. PORTUONDO

United States District Court, Southern District of New York


January 17, 2003

GREGORY COUNTS, PETITIONER,
v.
LEONARD PORTUONDO, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge

MEMORANDUM ORDER

Petitioner Gregory Counts ("Petitioner") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on May 6, 1997. On October 20, 2000, Magistrate Judge Douglas E. Eaton issued a Report and Recommendation ("Report") recommending that the Court treat as exhausted and dismiss Ground One of the petition and dismiss the remaining grounds asserted pursuant to 28 U.S.C. § 2254(b)(2) for lack of merit even though they were not exhausted. On April 15, 2002, the Court issued an Opinion and Order adopting, in part, Magistrate Judge Eaton's Report. By that order, this Court stayed proceedings on the one exhausted ground contained in the petition pending state proceedings on the four unexhausted grounds alleged in the petition, and dismissed those unexhausted grounds without prejudice on authority of Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied, 122 S.Ct. 506 (2001). Respondent Leonard Portuondo ("Respondent") moved timely for reargument and/or reconsideration, of this Court's April 15, 2002 order, pursuant to S.D.N.Y. Local Civil Rule 6.3, countsII.wpd version 011703 1 arguing that the petition should be dismissed on its merits with prejudice.

Motions for reconsideration are governed by S.D.N.Y. Local Rule 6.3. A motion for reconsideration can be granted if there is an intervening change of controlling law, new evidence becomes available, or there is a need to correct a clear error or prevent manifest injustice. Virgin Atlantic Airways v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (citation omitted). Motions for reconsideration must be narrowly construed and strictly applied in order to discourage litigants from making repetitive arguments on issues that have been thoroughly considered. Range Road Music Inc. v. Music Sales Corp., 90 F. Supp.2d 390, 391 (S.D.N.Y. 2000).

Here, the first ground for reconsideration, an intervening change in controlling law, warrants grant of the application. After Respondent moved for reconsideration, the Court of Appeals for the Second Circuit vacated and withdrew the decision relied on by this Court in its April 15, 2002 Opinion and Order, Jones v. Senkowski, No. 00 Civ. 2145, 2002 WL 246451 (2d Cir. Oct. 5, 2001). This Court's April 15, 2002 Opinion and Order, citing Jones v. Senkowski, 2002 WL 246451, noted that "Petitioner might be able to bring an ineffective assistance of counsel claim for failure to raise suggestiveness claim on direct appeal, under Section 440.10 of the New York Criminal Procedure Law." April 15, 2002 Opinion at 6 n. 1. The Second Circuit's Jones v. Senkowski decision was withdrawn in an unpublished opinion in Jones v. Senkowski, No. 00 Civ. 2145, 2002 WL 1032589 (2d Cir. May 22, 2002). The Second Circuit's May 22, 2002 Opinion in Jones v. Senkowski, 2002 WL 1032589, called into question the validity of some substantive aspects of the October 5, 2001 Opinion issued in that case and, therefore, this Court's April 15, 2002 Opinion and Order in Counts v. Portuondo. Given the change in law, countsII.wpd version 011703 2 Respondent's motion for reconsideration of this Court's April 15, 2002 Opinion and Order is granted.

This Court now reconsiders its April 15, 2002 Opinion in light of Jones v. Senkowski, 2002 WL 1032589 (2d Cir. May 22, 2002). The May 22, 2002 Jones v. Senkowski, 2002 WL 1032589, Opinion specifically relied in part on the New York State decision in People v. Bachert, 69 N.Y.2d 593 (1987), which held that "a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel." Id. at 595-96. This made clear that a Section 440.10 court is without jurisdiction to consider a claim of ineffective assistance of appellate counsel and that the suggestion in the October 5, 2001 Jones v. Senkowski, 2002 WL 246451, was misplaced. Petitioner will not be able to pursue the federal constitutional claims related to ineffective assistance of counsel not raised on his direct appeal in a motion to vacate under Section 440.10. That being the case, the instant petition is not a mixed one but rather contains claims that are procedurally forfeited and lack merit. See 28 U.S.C.A. § 2254 (West 2002).

Judge Eaton's well-reasoned Report, dated October 20, 2000, is adopted in its entirety. Petitioner's four unexhausted claims, thus, are dismissed with prejudice and Petitioner's petition is denied.

The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 2002); see generally United States v. Perez, 129 F.3d 255, 259-60 countsII.wpd version 011703 3 (2nd Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

20030117

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