United States District Court, S.D. New York
June 29, 2005.
Washington Davis, Petitioner,
Arthur A. Leonardo, Superintendent of Great Meadow Correctional Facility, Respondent.
The opinion of the court was delivered by: MIRIAM CEDARBAUM, Senior District Judge
On July 15, 1994, I denied the petition for a writ of habeas
corpus of then state prisoner Washington Davis. See Davis v.
Leonardo, No. 93 Civ. 2931 (MGC), 1994 WL 376136 (S.D.N.Y. July
15, 1994). On September 20, 1994, I denied petitioner's
application for a certificate of probable cause. Petitioner
thereafter moved to vacate the July 15, 1994 order, and I denied
the motion in an order dated May 23, 1995. Petitioner again moved
to alter or amend the July 15, 1994 order, and I again denied the
motion by order dated July 28, 1995. I also denied petitioner's
motion for a certificate of probable cause. In June 2004,
petitioner moved for a third time to vacate the July 15, 1994
order, pursuant to Fed.R.Civ.P. 60(b). I denied the motion in
a memorandum opinion entered October 6, 2004. See Davis v.
Leonardo, No. 93 Civ. 2931 (MGC), 2004 WL 2211654 (S.D.N.Y. Oct. 1, 2004).
Petitioner now moves under Fed.R.Civ.P. 59 to alter or amend
the October 6, 2004 memorandum opinion on the grounds that
"material facts and evidence" were "overlooked" and arguments
"misapprehended" in rendering that decision.
As an initial matter, petitioner's motion is untimely. Local
Civil Rule 6.3 provides that "[a] notice of motion for
reconsideration or reargument of a court order determining a
motion shall be served within ten (10) days after the entry of
the court's determination of the original motion." According to
petitioner's Affidavit of Service, petitioner mailed a copy of
this motion to the Office of the Bronx County District Attorney
on October 22, 2004 sixteen days after the challenged ruling
Petitioner's motion also fails on the merits. Reconsideration
may properly be granted when the moving party can show that "the
court has overlooked matters or controlling decisions which, had
they been considered, might reasonably have altered the result."
Donahue v. Pendleton Woolen Mills, Inc., 719 F. Supp. 149, 151
(S.D.N.Y. 1988) (internal quotation and citations omitted).
Petitioner has not identified any fact or cited any authority
that was overlooked in the decision on his previous motion to
vacate. The "newly discovered evidence" on which petitioner
relies an October 12, 2004 decision and order of the New York Appellate Division, First Department, see
Davis v. City of New York, 11 A.D.3d 254, 782 N.Y.S.2d 908 (1st
Dep't 2004) is not evidence, and in any event does not support
petitioner's claim. All of the issues raised by petitioner in his
present motion were carefully considered before the issuance of
the memorandum opinion entered October 6, 2004. Accordingly,
petitioner's motion for reconsideration is denied.
Petitioner also seeks by letter to assert a claim that his
sentence was unconstitutional under Blakely v. Washington,
124 S. Ct. 2531 (2004) a claim that was also the subject of a
motion dated July 2004 filed by petitioner in New York state
court pursuant to N.Y.C.P.L. § 440.20. As previously noted,
however, petitioner's application to this court for a writ of
habeas corpus was denied. If petitioner wishes to file a second
or successive habeas petition, he must first move in the United
States Court of Appeals for the Second Circuit for an order
authorizing its consideration. 28 U.S.C. § 2244(b)(3)(A). In any
event, the Second Circuit has held that neither Blakely nor
United States v. Booker, 125 S. Ct. 738 (2005), applies
retroactively to collateral challenges like petitioner's. See
Green v. United States, 397 F.3d 101, 103 (2d Cir. 2005)
(denying application to file a second or successive petition
under 28 U.S.C. § 2255).
For the foregoing reasons, petitioner's request to have his Blakely claim "be made part of [his] habeas petition" is also
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