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Fair v. United States

August 30, 2006


The opinion of the court was delivered by: Scullin, Senior Judge



On July 24, 1997, a federal grand jury sitting in the Northern District of New York returned an Indictment against Petitioner Sylvester Fair and another individual. See United States v. Fair, 5:97-CR-243 ("Action No. 97-CR-243"), at Dkt. No. 11 ("Indictment"). That Indictment charged Petitioner with conspiracy with intent to distribute cocaine base and possession with intent to distribute "approximately 223 grams of a mixture or substance containing cocaine base." See id. On December 17, 1997, following a jury trial, Petitioner was convicted of both counts. Following this Court's denial of his post-trial motions, see Action No. 97-CR-243 at Dkt. Nos. 48, 60, Petitioner appeared before this Court for sentencing on April 6, 1999. At that proceeding, the Court imposed concurrent terms of twenty years' imprisonment on each of his two convictions. See id. at Dkt. No. 60.

Petitioner appealed that judgment of conviction on the grounds that (1) this Court improperly failed to suppress certain post-arrest statements that he made to law enforcement agents; (2) there was insufficient evidence adduced at trial to support his conviction on either count; (3) this Court's jury instructions failed to include required language regarding the credibility of accomplice testimony; and (4) the Government improperly secured the testimony of the co-Defendant named in the Indictment, who thereafter testified against him at trial. See id. at Dkt. No. 63. By Mandate filed February 18, 2000, the Second Circuit unanimously affirmed Petitioner's conviction. See id. at Dkt. No. 71.

On December 11, 2000, Petitioner filed a Motion to Vacate, Set Aside or Correct his Sentence pursuant to 28 U.S.C. § 2255. See Action No. 00-CV-1919 at Dkt. No. 1 ("Motion to Vacate"). In that application, Petitioner alleged that (1) the jury improperly failed to determine the amount of cocaine base that he conspired to possess, see Motion to Vacate at Ground One; (2) his constitutional right to a jury trial was violated when the jury failed to render a verdict that specifically addressed the quantity of narcotics involved in the claimed conspiracy, see id. at Ground Two; (3) this Court improperly admitted his statement to law enforcement agents into evidence against him at trial, see id. at Ground Three; and (4) the Court illegally "sentenced [him] outside the recommended guideline range," see id. at Ground Four. Respondent filed a memorandum of law in opposition to Petitioner's Motion to Vacate, see Action No. 00-CV-1919 at Dkt. No. 2; and Petitioner subsequently filed a traverse in further support of his Motion to Vacate, see id. at Dkt. No. 3.

In a Memorandum-Decision and Order issued on March 22, 2001, this Court denied Petitioner's Motion to Vacate in its entirety. See id. at Dkt. No. 4. Subsequently, by Order filed May 10, 2001, the Court denied Petitioner's application for a Certificate of Appealability relating to the denial of his Motion to Vacate. See id. at Dkt. No. 6. Petitioner thereafter attempted to appeal this Court's March 22, 2001 Memorandum-Decision and Order to the Second Circuit; however, by Mandate filed March 28, 2002, the Second Circuit denied his request for a Certificate of Appealability, finding that he had failed to make a "substantial showing of the denial of a constitutional right." See id. at Dkt. No. 15.*fn1 The Second Circuit, therefore, dismissed his appeal. See id.

On November 22, 2005, Petitioner filed an application to "reopen" his Motion to Vacate pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. See Action No. 00-CV-1919 at Dkt. No. 16. By Order filed May 31, 2006, this Court denied that application. See id. at Dkt. No. 17 ("Rule 60(b) Order"). Petitioner now seeks reconsideration of that Order. See id. at Dkt. No. 18 ("Motion for Reconsideration"). Additionally, Petitioner seeks, for a second time, a Certificate of Appealability from this Court. See id. at Dkt. No. 19.


A. Applicable Standard

A court may only grant a motion for reconsideration of a final order for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect; (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 (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, 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.

Fed. R. Civ. P. 60(b).

With this standard in mind, the Court will review the substance of ...

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