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Salcedo v. Smith

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


May 15, 2007

TIRSO SALCEDO, PETITIONER,
v.
JOSEPH T. SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY, RESPONDENT.

The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

On June 13, 2006, this Court denied the petitioner's petition for a writ of habeas corpus and declined to issue a certificate of appealability pursuant to 28 U.S.C. § 2253. On June 29, 2006, the petitioner filed a notice of appeal from this Court's judgment. On July 25, 2006, the petitioner filed a motion pursuant to Federal Rule of Civil Procedure 60(b) to reconsider and reverse its prior decision on the grounds that the Court overlooked controlling authority. At that point, the Court lacked jurisdiction to grant such a motion in view of the pending appeal and had the power at most to indicate to the Court of Appeals its inclination to grant such a motion if the case were remanded to it. See Tolliver v. County of Sullivan, 957 F.2d 47, 49 (2d Cir. 1992).

The Court of Appeals has now dismissed the appeal on the grounds that the petitioner failed to make a substantial showing of the denial of a constitutional right. While the appeal is no

20070515

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