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MOSES v. U.S.

United States District Court, S.D. New York


March 29, 2004.

LEROY A. MOSES, a/k/a JAWAD AMIR MUSA, Petitioner -against- UNITED STATES OF AMERICA, Respondent

The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge

OPINION and ORDER

On December 15, 2003, Petitioner Leroy A. Moses, also known as Jawad Amir Musa, filed a motion for reconsideration of this Court's denial of his habeas corpus petition. See Moses v. United States, 1998 WL 255401 (S.D.N.Y. May 20, 1998). In a motion dated February 29. 2004 Petitioner requests appointment of pro bono counsel to assist him.

"In deciding whether to appoint counsel . . . the district judge should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). "Even where the claim is not frivolous, counsel is often unwarranted where the indigent's chances of success are extremely slim." Id. at 60 (quoting Maclin v. Freake, 650 F.2d 885 (7th Cir 1981)).

  Here, Plaintiff has filed a Fed.R.Civ.P. 60(b) motion seeking relief from a judgment of the Court dated May 20, 1998, because of a change in intervening law. See Fed.R.Civ.P. 60(b)(5). Because "a change in the applicable law after a judgment has become final in all respects is not a sufficient basis for vacating the judgment," (Tomlin v. McDaniel, 865 F.2d 209, Page 2 210 (9th Cir. 1988)), Petitioner's position does not seem likely to be "of substance" (Hodge, 802 F.2d at 61). Moreover, to gain relief under Fed.R.Civ.P. 60(b)(6), Petitioner must demonstrate "extraordinary circumstances." Liljeberg v. Health Servs. Acquisistion Corp., 486 U.S. 847, 864 (1988). Given the high standards that Petitioner must overcome to succeed on a Fed.R.Civ.P. 60(b) motion, Petitioner's chances of success are "extremely slim." Hodge, 802 F.2d at 60.

  Petitioner's motion for appointment of counsel is hereby denied.

  IT IS SO ORDERED.

20040329

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