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Stein v. Artus

November 5, 2007

ROGER STEIN, PETITIONER,
v.
SUPERINTENDENT ARTUS, RESPONDENT.



The opinion of the court was delivered by: George H. Lowe United States Magistrate Judge

DECISION AND ORDER

I. BACKGROUND

Petitioner Roger Stein commenced this proceeding, pro se, on April 19, 2004. See Dkt. No. 1. On April 30, 2004, now-Chief United States District Judge Norman A. Mordue ordered Stein to file an amended pleading herein, see Dkt. No. 3, which Stein filed on May 14, 2004. See Dkt. No. 4 ("Am. Pet."). In his pleading, Stein argued that: i) the trial court committed reversible error when it failed to dismiss the indictment after Stein was deprived of his right to testify before the grand jury; ii) the verdict was against the weight of the evidence; iii) the evidence presented at trial was insufficient to sustain the conviction; and iv) the County Court wrongfully denied Stein's suppression motion. See Am. Pet., Grounds One through Four.

On May 9, 2005, the Attorney General filed an answer and memorandum of law in opposition to Stein's pleading on behalf of the respondent. Dkt. Nos. 13-14. Petitioner thereafter submitted a "traverse" in further support of his request for federal habeas intervention. Dkt. No. 17.

On June 18, 2007, a consent was filed in this action wherein both parties consented to the jurisdiction of this Court to issue a dispositive ruling relating to Stein's amended pleading, Dkt. No. 26, and in a Memorandum-Decision and Order filed September 19, 2007, this Court denied and dismissed Stein's amended petition. See Dkt. No. 28 ("September, 2007 MDO").

On October 15, 2007, Stein filed a motion which seeks reconsideration of the September, 2007 MDO, Dkt. No. 32 ("Motion for Reconsideration"), which application is currently before this Court for review.

II. DISCUSSION

A. Standard of Review

Stein has filed his Motion for Reconsideration pursuant to FED.R.CIV.P. 60(b). See Motion for Reconsideration at p. 3. This Rule of the Federal Rules of Civil Procedure provides, in salient part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc.

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 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).

Stein does not claim that newly discovered evidence warrants the granting of his application. Nor does he claim that the judgment dismissing this action was obtained by fraud or other misconduct committed by the respondent, that the judgment is void, or that the adverse judgment has been satisfied. Rather, petitioner bases his application upon his claims that: 1) an error was committed by this Court in its September, 2007 MDO;*fn1 and/or 2) "other reason[s]" exist which justify ...


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