The opinion of the court was delivered by: Cedarbaum, J.
Washington Davis, a state prisoner, moves pursuant to Fed.R.Civ.P. 60(b) to vacate the dismissal of his petition for a writ of habeas corpus. See Davis v. Leonardo, No. 93 Civ. 2931, 1994 WL 376136 (S.D.N.Y. July 15, 1994). For the following reasons, the motion is denied.
In 1984, a jury in the Supreme Court of New York, Bronx County, convicted Davis of robbery in the second degree. He was sentenced, as a persistent felony offender, to a term of incarceration of fifteen years to life. After several unsuccessful attempts to obtain post-conviction relief in state court, the affirmance of his conviction and sentence by the Appellate Division, and an unsuccessful federal habeas corpus petition, Davis filed a second federal petition, the dismissal of which is the subject of the current motion. In that petition, Davis sought relief on five grounds: (1) that the state court lacked jurisdiction to try his case; (2) that court officials, prosecutors, and Davis's trial lawyer conspired to maliciously prosecute him; (3) that the Appellate Division improperly barred his post-conviction claims on procedural grounds; (4) that New York courts were biased against him because he named them as defendants in a class-action lawsuit; and (5) that he should not have been convicted of robbery after the trial judge dismissed a charge of assault.
Davis's first claim was dismissed because an independent and adequate state ground precluded federal review. Davis had raised the claim in one of his state habeas corpus petitions and a state court had held it to be procedurally barred. Davis's second claim was dismissed because Davis had not exhausted it in state court. Davis's remaining claims were dismissed as either unexhausted or without merit. See Davis, 1994 WL 376136 at *2-3.
After attempts to vacate and appeal the dismissal of his petition proved unsuccessful, Davis filed a motion for post-conviction relief in New York state court pursuant to N.Y. C.P.L. § 440.10. This motion was denied. He filed another habeas corpus petition in this court in 1997. The petition was transferred to the Second Circuit, which denied Davis leave to file a successive petition. Several more unsuccessful state post-conviction motions followed. Although the substance of the claims Davis raised in these state court proceedings is not entirely clear from the documents he has submitted, respondent concedes that Davis raised his unexhausted conspiracy claim at some point. In 2001, Davis sought the Second Circuit's permission to file a successive habeas petition based on allegations of newly discovered evidence. The Second Circuit denied Davis's request. In June 2004, Davis filed the present motion.
The grounds of Davis's motion are somewhat unclear, but he appears to be seeking to revive the first two claims of his original petition. He argues that newly discovered evidence demonstrates that the trial court which convicted him lacked jurisdiction to try his case and that his conviction was the product of a conspiracy among the court officials and lawyers involved in the case. Davis also claims that respondent committed a fraud upon this court by concealing this evidence during the pendency of Davis's federal habeas petition. Davis states that he has exhausted his state court remedies with respect to his conspiracy claim. Accordingly, that claim is now ripe for review in this court. He appears to suggest that his 1997 habeas petition, which was transferred to the Second Circuit and dismissed, was not a successive petition, but an attempt to refile the unexhausted claim, which had been dismissed without prejudice.
Rule 60(b) provides, in pertinent part: On motion and upon such terms as are just, the court may relieve a party... from a final judgment, order, or proceeding for the following reasons:... (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;... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken.... This rule does not limit the power of a court... to set aside a judgment for fraud upon the court.
The first hurdle Davis faces is the timeliness of his motion. Insofar as he is seeking relief based on newly discovered evidence, he has missed Rule 60(b)'s one-year deadline by nine years. Davis argues, correctly, that a claim based on fraud upon the court is not subject to that time bar. Nevertheless, any motion under Rule 60(b) must be made within a "reasonable time." The timeliness of the motion must be assessed with reference to the circumstances of the case, and the court must "balance the interest in finality with the reasons for delay." PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983). Moreover, the moving party must show good cause for failing to act sooner. See Kotlicky v. U.S. Fid. & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987). Davis has not offered any justification for his delay. He obtained the evidence which he claims was concealed from this court in 1999. Accordingly, it is difficult to see why he delayed making this motion for another five years. Davis appears to argue, with respect to the issue of timeliness, that he has been diligently pursuing his claims in state court. While this may be relevant to the question of exhaustion, its relevance to the timeliness of his motion is unclear.
The second problem confronting Davis is that his motion challenges the validity of his state conviction. Relief from a habeas corpus proceeding is available under Rule 60(b) only when the motion "attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction." See Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004). The "newly discovered evidence" which Davis presents consists of some of his Department of Corrections ("DOC") records and several New York Law Journal articles reporting on sanctions assessed against the DOC in an Article 78 proceeding which Davis initiated. A state court determined that the DOC had failed to make a good faith effort to locate the records Davis sought. Other evidence offered by Davis indicates that the DOC subsequently located the records and sent him copies. Because Davis's habeas petition was dismissed on procedural grounds, there is no way that these materials, or evidence that the DOC wrongfully withheld materials from Davis, assist him in demonstrating that respondent perpetrated a fraud on this court. They do not show that respondent misled this court with respect to whether Davis's jurisdiction claim was held to be procedurally barred by a state court, or whether a state court had an opportunity to consider his conspiracy claim. Davis may not use Rule 60(b) to evade the procedural requirements of the federal habeas corpus statutes.
Finally, Davis's underlying claims lack merit. His jurisdiction claim alleges, among other things, that the indictment charging him with robbery was "fictitious," that the indictment was not signed by the Grand Jury foreperson, and that the trial judge accordingly forged a signature. This claim was originally dismissed because a New York state court had considered and rejected it on an independent and adequate state law ground. See Davis, 1994 WL 376136 at *2. In addition to this significant procedural bar, Davis has offered no evidence to support these allegations, which have been presented to numerous state and federal courts.
Similarly, Davis's conspiracy claim cannot prevail. Even if his Rule 60(b) motion were treated as a renewal of his original petition, such that his now-exhausted claim were ripe for review, it is clear that Davis has failed to present evidence showing that he was falsely convicted based on a conspiracy among the court and the lawyers in ...