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Parke v. United States

October 20, 2006

LENWORTH PARKE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Neal P. McCurn, Senior United States District Judge

MEMORANDUM, DECISION AND ORDER

Presently before the court is petitioner Lenworth Parke's ("Parke") Fed. R. Civ. P. 60(b)(6) motion for relief from judgment (Doc. #60), specifically from this court's April 22, 1999 denial of his motionto vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255. Parke brings this motion in light of the Supreme Court case of Gonzalez v. Crosby, 545 U.S. 524 (2005), which, in Parke's opinion, renders this court's ruling on Parke's previous Rule 60(b) motion "defective." For the reasons set forth below, Parke's motion will be denied.

Factual and Procedural Background

In February 1993, after a jury trial, Parke and four co-defendants were convicted of five felonies stemming from the drug-related murder of an undercover police officer. Each received a life sentence. Parke's conviction was thereafter affirmed on appeal. See United States v. Thomas, 34 F.3d 44 (2d Cir. 1994). On April 16, 1997, Parke filed a motion to vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255, based on his claims of perjury on behalf of a government witness, prosecutorial misconduct, and ineffective assistance of trial counsel. See Parke v. United States, No. 97-CV-526, 1998 WL 326762, at *1 (N.D.N.Y. Apr. 27, 1998). Parke filed a supplemental motion on August 13, 1997, which asserted the additional claim of ineffective assistance of appellate counsel. See id. Citing the prevailing view of district courts in this circuit at the time, this court denied Parke's motion and dismissed his § 2255 petition as untimely. See id. at *3. Two months later, the Second Circuit Court of Appeals rejected the prior prevailing view among the district courts upon which this court relied in denying Parke's motion. See id. at *1, citing Rose v. Artuz, 150 F.3d 97, 101-103 (2d Cir. 1998). Thus, this court reopened the matter and decided Parke's previous claims as well as an additional ground for relief. See Parke v. United States, No. 97-CV-526, 1999 WL 242637 (N.D.N.Y. Apr. 22, 1999). All of those claims were decided against Parke on the merits, including his claim of ineffective assistance of trial counsel. The court denied that claim, citing Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), wherein the Second Circuit held that "where a petitioner does not bring a claim on direct appeal, he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural defect and actual prejudice resulting therefrom." See Parke v. United States, 1999 WL 242637, at *2, citing Billy-Eko, 7 F.3d at 113-114. The court also considered (and denied) Parke's claim of ineffective assistance of appellate counsel, holding that appellate counsel's representation was not unreasonable. The court alternatively noted that appellate counsel did, in fact, raise the argument that Parke claimed was omitted in the appellate brief. Id.

On April 23, 2003, the Supreme Court abrogated Billy-Eko, holding instead that "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal." See Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694 (2003). On May 27, 2003, Parke filed a Rule 60(b) motion to reopen this court's April 22, 1999 order denying his § 2255 motion regarding his ineffective assistance of trial counsel claim. The United States (hereinafter, "the government") opposed that motion. On February 17, 2004, this court deemed Parke's motion a second or successive motion, requiring certification from the Court of Appeals in accordance with 28 U.S.C.A. § 2255. Pursuant to that ruling, certified copies of the pertinent documents were forwarded to the Second Circuit Court of Appeals. Parke failed to file, within forty-five days, the required application requesting that the Court of Appeals authorize a second or successive habeas corpus petition in the United States Court. For that reason, authorization for the underlying petition was denied by the Second Circuit pursuant to its ruling in Liriano v. USA, 95 F.3d 119 (2d. Cir. 1996), which set forth said application requirements.

On October 20, 2005, Parke filed the present Motion for Relief from Judgment Under Rule 60(b)(6), Federal Rules of Civil Procedure, in Light of Gonzalez v. Crosby, 545 U.S. __, (2005), For Defect in the Integrity of the Habeas Process. Parke specifically requests Rule 60(b) relief from this court's order, dated April 22, 1999, that refused to give habeas review of Parke's ineffective assistance of counsel claim, because Parke failed to raise the issue on direct appeal. The government opposes Parke's motion.

Analysis

I. Fed. R. Civ. P. Rule 60(b)(6) Motion for Relief from Judgment

Rule 60(b) provides in pertinent part that:

On motion and upon such terms as are just, the court may relieve a party or his 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, ... 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. Rule 60(b). "Subpart (6) confers broad discretion on the trial court to grant relief when appropriate to accomplish justice [and] it constitutes a grand reservoir of equitable power to do justice in a particular case." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (internal citations and quotation marks omitted). "Furthermore, it is properly invoked where there are extraordinary circumstances, or where the judgment may work an extreme and undue hardship." Id. at 55-56. However, "as a general matter, a mere change in decisional law does not constitute an 'extraordinary circumstance' for the purposes of Rule 60(b)(6)." Id. at 56. In Pichardo, the court of appeals found that the facts of that particular case carved out an exception, in that "[a]bsent a meaningful and substantive review of [the alien's] case, manifest injustice will occur because the change in law goes to the very basis of [the alien's] deportation." Id.

The government first argues that Parke is not entitled to relief under Rule 60 (b)(6), and that his reliance on Gonzalez is misplaced for two reasons: (1) Gonzalez does not apply to the Parke because he is a federal prisoner, and (2) Parke has failed to demonstrate the existence of the "extraordinary circumstances" necessary for Parke to obtain relief. Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 2646-50 (2005).

In Gonzales, the Supreme Court held that a Rule 60(b) motion by a state prisoner was not a successive habeas petition under § 28 U.S.C. 2254 "[i]f neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction." Id. at 2648. In addition, Gonzalez clearly indicated that the Court limited its consideration to § 2254 cases:

[W]e consider only the extent to which Rule 60(b) applies to habeas proceedings under 28 U.S.C.§ 2254, which governs habeas relief for prisoners convicted in state court. Federal prisoners generally seek post-conviction relief under § 2255, which contains its own provision governing second or successive applications. Although that portion of § 2255 is similar to, and refers to, ...


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