The opinion of the court was delivered by: Sweet, D.J.
Petitioner pro se Carlton Sterling ("Sterling"), currently incarcerated at Sing Sing Correctional Facility, Ossining, New York, seeks, pursuant to Fed. R. Civ. P. 60(b)(6), to vacate the order denying his first habeas corpus petition. The respondent, Robert H. Kuhlman, Superintendent (the "State") has opposed the motion. For the reasons set forth below, the motion of petitioner is denied in its entirety.
Following a jury trial, a judgment of conviction was entered on December 8, 1992, in New York State Supreme Court, Bronx County, for one count of murder in the second degree. Sterling was sentenced to a term of imprisonment of 25 years to life.
On April 7, 1997, petitioner filed a section 2254 habeas corpus petition seeking collateral review of his conviction. In a memorandum and order dated January 5, 1998, this Court denied that petition. See Sterling v. Kuhlman, No. 97 Civ. 2825 (JSM), 1998 U.S. Dist. LEXIS 6 (S.D.N.Y. Jan. 5, 1998).
In pro se motion papers dated January 12, 2002, petitioner moved the trial court, pursuant to CPL § 440.30(1-a), for an order directing DNA testing of: (1) "long white hairs" recovered from decedent's body and a blanket covering decedent, and (2) 26 enumerated pieces of crime scene evidence. On March 18, 2002, the Honorable John Byrne denied this motion.
On March 26, 2002, petitioner applied, pursuant to CPL § 460.15, to the Appellate Division, First Department, for leave to appeal from the March 18, 2002 order. On August 8, 2002, the Honorable Luis A. Gonzalez issued a certificate denying leave.
On May 1, 2003, petitioner moved for a writ of error coram nobis, contending that appellate counsel was ineffective for failing to argue on direct appeal that trial counsel was ineffective for failing to pursue the above DNA testing. On February 26, 2004, the Appellate Division, First Department, unanimously confirmed petitioner's judgment of conviction. See People v. Sterling, 4 A.D.3d 898 (2004). On August 4, 2004, the Honorable Victoria A. Graffeo of the New York State Court of Appeals denied petitioner leave to appeal this decision. See People v. Sterling, 3 N.Y.3d 682 (2004).
On September 30, 2004, petitioner filed a motion with this Court, pursuant to Fed. R. Civ. P. 60(b)(6), to vacate its decision of January 5, 1998, denying his habeas corpus petition.
Rule 60(b) allows courts to relieve a party from a final judgment. Fed. R. Civ. P. 60(b). Specifically, Rule 60(b) provides:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence ...; (3) fraud ..., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged ... or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
"A motion under Rule 60(b) is addressed to the sound discretion of the trial court." Velez v. Vassallo, 203 F. Supp. 2d 312, 333 (S.D.N.Y. 2002) (citing Mendell on Behalf of Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990)). Nonetheless, the Second Circuit has cautioned that Rule 60(b) provides "extraordinary judicial relief" to be granted "only upon a showing of exceptional circumstances." Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Employers Mut. Cas. Co. v. Key Pharm., 75 F.3d 815, 824-25 (2d Cir. 1996) ("A movant under Rule 60(b) must demonstrate 'exceptional circumstances' justifying the extraordinary relief requested."). In evaluating a Rule 60(b) motion, the courts of this circuit also require that the evidence in support of the motion be highly convincing, that the movant show good cause for the failure to act sooner, and that ...