UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
January 25, 2006
CARLTON STERLING, PETITIONER,
ROBERT H. KUHLMAN, RESPONDENT
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 no undue hardship be imposed on the other parties as a result. See, e.g., Kotlicky v. U.S. Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987); Williams v. New York City Dep't of Corr., 219 F.R.D. 78, 84 (S.D.N.Y. 2003).
A motion under Rule 60(b) does not per se constitute a second habeas petition under § 2254. See Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001).*fn1 Rather, the Second Circuit has held that "[a] motion under Rule 60(b) and a petition for habeas have different objectives. The habeas motion under 28 U.S.C. § 2254 seeks to invalidate the state court's judgment of conviction . . . [while] the motion under Rule 60(b) . . . seeks only to vacate the federal court judgment dismissing the habeas petition." Id. Accordingly, a court will vacate a judgment pursuant to a Rule 60(b) motion in the habeas context only if it relates "to the integrity of the federal habeas proceeding, not the integrity of the . . . criminal trial." Id. at 199.
On the other hand, if "a motion relates to the integrity of the criminal trial and not the prior habeas proceeding, the motion is in actuality a §  petition and must meet the criteria set forth in the Antiterrorism and Effective Death Penalty Act of 1996 [(the "AEDPA")]." Harris v. United States, 357 F. Supp. 2d 524, 527 (N.D.N.Y. 2005). Under the AEDPA, in order to file a successive § 2254 petition, the petitioner must first file an application with the appropriate Court of Appeals for an order authorizing the district court to consider it. See 28 U.S.C. § 2254; 28 U.S.C. § 2244(b)(3)(A). Absent authorization from the Second Circuit, this Court lacks jurisdiction to consider a successive habeas petition. See Torres v. Senkowski, 316 F.3d 147, 149 (2d Cir. 2003) (stating that "the authorization requirement [for second or successive habeas petitions] is jurisdictional and therefore cannot be waived").
A review of petitioner's claims makes clear that the instant Rule 60(b) motion is properly considered a successive petition for a writ of habeas corpus. Petitioner asks this Court to vacate its earlier judgment based upon three grounds. First, he argues that the Court erred in denying his habeas corpus petition because he is "actually innocent." Second, he contends that the trial court improperly refused to admit petitioner's videotaped statement, an argument raised in his direct appeal and in his habeas corpus petition. Finally, petitioner alleges that his appellate counsel's failure to argue on direct appeal that his trial counsel was ineffective for failing to pursue DNA testing violated his right to effective appellate counsel in violation of the Sixth Amendment to the United States Constitution.
Each of these claims represents a constitutional attack on the underlying conviction, and not a complaint regarding the integrity of the federal habeas corpus proceedings. The second of these arguments was raised in petitioner's first habeas corpus petition. However, the issue of whether the trial court erred in refusing to admit petitioner's video-taped statement relates specifically to the underlying trial that resulted in his conviction; it does not relate to the fairness of this Court's consideration of that claim in the initial habeas proceedings. As the second claim is not properly considered an attack on the collateral proceedings, but rather is clearly an attack on the conviction itself, it is properly deemed a successive petition for habeas corpus.
The remaining two arguments raised by petitioner in the instant motion, also are not properly the subject of a Rule 60(b) motion in the habeas context. Given that neither the "actual innocence" nor the ineffective appellate counsel issues were raised in petitioner's habeas petition, and therefore were not previously considered by this Court, they do not bear whatsoever on the integrity of the federal habeas proceedings. Again, these arguments directly attack Sterling's underlying conviction itself -- the constitutional validity of which is not before this Court on the instant Rule 60(b) motion.
It should be noted that petitioner's argument involving DNA-testing also includes a claim that he is entitled to relief under Rule 60(b) because he was not granted a fair hearing on the facts of his habeas petition, relying on one district court case, Mickens v. United States. See Mickens, 333 F. Supp. 2d 44 (E.D.N.Y. 2004). Notwithstanding the fact that this argument may be construed as attacking the validity of the habeas proceeding, and not simply the underlying conviction itself, the argument is unavailing. Assuming arguendo this claim were deemed to raise questions about the integrity of the habeas corpus proceedings, the motion is untimely. This Court dismissed petitioner's writ of habeas corpus on January 5, 1998 --over eight years ago. "To justify relief under subsection(6), a party must show 'extraordinary circumstances' suggesting that the party is faultless in the delay." Pioneer Investment Servs. Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 392, 123 L. Ed. 2d 74, 113 S. Ct. 1489 (1993) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863, 864 n.11, 100 L. Ed. 2d 855, 108 S. Ct. 2194 (1988)). Petitioner has not come forth with any explanation for his failure to act sooner. Accordingly, it is determined that even if this were a proper issue for a Rule 60(b) motion, it was not raised within a "reasonable time," as required under the law of this Circuit. See Rodriguez, 252 F.3d at 201 (holding one and a half years from judgment an unreasonable delay).
In accordance with the above, petitioner's Rule 60(b) motion is hereby denied. To the extent that his arguments address proper grounds for relief on a successive habeas motion, this court is without jurisdiction.
It is so ordered.
ROBERT W. SWEET U.S.D.J.