United States District Court, E.D. New York
April 6, 2005.
WILLIAM VASQUEZ, Movant,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM AND ORDER
William Vasquez ("Vasquez") moves, pursuant to Federal Rule of
Civil Procedure 60(b), for an order reopening the § 2255
proceedings in this case. Vasquez further moves for an order
granting him leave to amend his Rule 60(b) motion. For the
reasons set forth below, the Court grants leave to amend, but
denies the Rule 60(b) motion.
In 1992, Vasquez was convicted of conspiracy to distribute
cocaine and distribution of cocaine; this Court sentenced Vasquez
to 235 months of imprisonment. See United States v. Grimaldi &
Vasquez, Case No. 91-CR-484 (E.D.N.Y.) (Judgment of Dec. 31,
1992, per Nickerson, J.). The Second Circuit affirmed, see
United States v. Grimaldi, 999 F.2d 536 (2d Cir. 1993) (table), and the United States Supreme
Court denied certiorari, see Grimaldi v. United States,
510 U.S. 937 (1993) (memorandum).
On September 19, 1996, Vasquez filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. Vasquez argued, inter
alia, that he received ineffective assistance from both his
trial and appellate counsel.
On September 30, 1998, Judge Nickerson of this Court denied the
§ 2255 motion. Relying on Billy-Eko v. United States,
8 F.3d 111 (2d Cir. 1993), he held that Vasquez's failure to raise his
ineffective-assistance claims on direct appeal barred him from
raising them in a § 2255 motion. Citing Strickland v.
Washington, 466 U.S. 668 (1984), Judge Nickerson added that
Vasquez had failed to demonstrate that his attorneys'
representation fell below an objective standard of reasonable or
that there was a reasonable probability that, absent the alleged
errors, the outcome of his criminal case would have been
Vasquez then moved for reconsideration and, later, moved to
amend his § 2255 motion to add a claim under Apprendi v. New
Jersey, 530 U.S. 466 (2000). Judge Nickerson deemed the motion
for reconsideration and the motion to amend a second § 2255
motion and, by order dated December 6, 2000, transferred the case
to the circuit court pursuant to 28 U.S.C. § 2244(b)(3)(A). The
circuit court denied authorization to file a second § 2255
motion, holding that Apprendi did not apply retroactively to
cases on collateral review.
In the meantime, Vasquez had appealed the December 6, 2000
order on the grounds that his motion for reconsideration was not a second §
2255 motion.*fn1 Judge Raggi, to whom the case had been
randomly reassigned after Judge Nickerson's death, denied
Vasquez's application for a certificate of appealability ("COA");
Vasquez then sought a COA from the circuit court, which denied
the application and dismissed the appeal. Undaunted, Vasquez
moved for reconsideration in the circuit court; after that motion
was denied, he unsuccessfully petitioned the Supreme Court for a
writ of certiorari.
On March 19, 2004, Vasquez filed a motion to reopen the § 2255
proceedings pursuant to Federal Rule of Civil Procedure 60(b); by
that time, Judge Raggi had been elevated to the circuit court and
the case had been randomly reassigned to the undersigned. In
addition to rearguing the merits of his original § 2255
motion,*fn2 Vasquez argued that the Court should vacate its
order denying the motion in light of Massaro v. United States,
538 U.S. 500 (2003), in which the Supreme Court held that
ineffective-assistance claims could be raised for the first time
in a § 2255 motion. On February 14, 2005, Vasquez moved to amend
his Rule 60(b) motion to add a claim under United States v.
Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), that his sentence
had been calculated in violation of his Sixth Amendment right to
trial by jury.*fn3 II.
Vasquez's motion for leave to amend his Rule 60(b) motion is
granted. As amended, the Rule 60(b) motion asks the Court to
vacate, in light of Massaro and Booker, its September 30,
1998 order denying Vasquez's § 2255 motion. A change in
decisional law is grounds for relief from a judgment under Rule
60(b)(6) only in "extraordinary circumstances, or where the
judgment may work an extreme and undue hardship[.]" Marrero
Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004) (citation
and internal quotation marks omitted).*fn4
In the present case, Booker and Massaro do not present
extraordinary circumstances or impose an undue hardship because
neither case calls into question the correctness of Judge
Nickerson's denial of Vasquez's § 2255 motion. Booker simply
does not apply retroactively to a collateral challenge to a
judgment that was final when the Supreme Court rendered its
decision. See Hamdani v. United States, 2005 WL 419727
(E.D.N.Y. Feb. 22, 2005) (citing Green v. United States,
397 F.3d 101 (2d Cir. 2005)); Woodard v. United States, 2005 WL 524725 (E.D.N.Y. Mar. 7, 2005). Vasquez's judgment of
conviction became final some 12 years before Booker was
Massaro is likewise insufficient grounds for relief from the
Court's order denying Vasquez's § 2255 motion. Prior to
Massaro, the rule in the Second Circuit was that an
ineffective-assistance claim could be raised in a § 2255 motion
whether or not it had first been raised on direct appeal, unless
the movant was represented by new appellate counsel on direct
appeal and the claim was based solely on facts appearing the
trial record; in those circumstances, an ineffective-assistance
claim could not be raised for the first time in a § 2255 motion
unless the movant could demonstrate cause and prejudice. See
Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993).
Massaro abrogated Billy-Eko, thereby allowing an
ineffective-assistance claim to be raised for the first time in a
§ 2255 motion regardless of whether the claim could have been
raised on direct appeal. See 538 U.S. at 504.
Here, Judge Nickerson denied Vasquez's § 2255 motion based in
part on Billy-Eko; however, he also held that the
ineffective-assistance claims raised in the motion were without
merit.*fn5 Given this ruling on the merits, Massaro had no
effect on the correctness of Judge Nickerson's order denying
Vasquez's § 2255 motion. Therefore, for purposes of the present
case, the subsequent change in the law does not amount to
extraordinary circumstances and does not impose an undue hardship
on Vasquez. Accord Moses v. United States, 2005 WL 292976 (S.D.N.Y. Feb. 8, 2005) (denying Rule
60(b)(6) motion based on Massaro because movant's
ineffective-assistance claims "could not succeed regardless of
whether they were procedurally barred [by Billy-Eko]").
For the foregoing reasons, Vasquez's Rule 60(b) motion is