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Taylor v. Cuomo

January 3, 2008

DONALD TAYLOR, PETITIONER,
v.
ANDREW CUOMO, NEW YORK STATE ATTORNEY GENERAL, RESPONDENT.



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

MEMORANDUM OPINION AND ORDER

Petitioner Donald Taylor brings this motion for reconsideration or, in the alternative, a stay of this Court's November 13, 2007 Memorandum Opinion & Order ("Mem. Op.") denying his habeas petition. In his habeas petition, Petitioner, who had previously been convicted of a misdemeanor, asserted that N.Y. Penal Law § 265.02(1)*fn1 , Criminal Possession of a Weapon in the Third Degree, to which petitioner pleaded guilty, was unconstitutionally broad to the extent that it rendered the statute vague and ambiguous and violated his Second Amendment right to bear arms. I denied petitioner's application on November 13, 2007. On November 21, 2007, petitioner timely moved for reconsideration pursuant to Local Rule 6.3 or for a stay of the Court's November 13, 2007 decision. For the reasons set forth below, petitioner's motion for reconsideration or for a stay is denied.

Background

On August 30, 2002, at approximately 7:00 a.m., pursuant to the execution of a search warrant, the police recovered in petitioner's bedroom a 12 gauge shotgun, a .35 caliber rifle, a .22 caliber rifle, a sawed-off shotgun, and a .38 caliber revolver.

Thereafter, petitioner was charged, by indictment filed on March 17, 2003, with two counts of Criminal Possession of a Weapon in the Third Degree, N.Y. Penal Law § 265.02(1), two counts of Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal Law § 265.01(1), and two counts of Unlawful Possession of a Rifle Without a Permit, in violation of N.Y.C.C.R. Admin. Code § 10-303.

On March 23, 2004, petitioner pleaded guilty to violating one count of N.Y. Penal Law § 265.02(1). Petitioner allocuted to possessing a .38 caliber handgun on August 30, 2002. On May 14, 2004, judgment was entered sentencing petitioner to a five-year term of probation.

Petitioner did not appeal. On April 25, 2006, petitioner, represented by the same counsel who represented him during his plea, sought collateral review of his conviction in the Supreme Court of New York, Kings County, pursuant to N.Y. Crim. Proc. Law § 440.10(1)(h) ("§ 440 motion").*fn2 The New York Supreme Court denied this motion on May 19, 2006, and, on September 8, 2006, the Appellate Division denied petitioner's application seeking leave to appeal. Petitioner filed his habeas petition in this Court on March 19, 2007. I denied his petition by written decision on November 13, 2007.

Discussion

Standard for Motion for Reconsideration

A motion for reconsideration pursuant to either Rule 59(e) of the Federal Rules of Civil Procedure or Local Rule 6.3 will be granted if the moving party presents factual matters or controlling decisions the court overlooked that might have materially influenced its decision.*fn3 Pereira v. Aetna Casualty and Surety Co. (In re Payroll Express Corp.), 921 F.Supp. 1121, 1123 (S.D.N.Y. 1996); Violette v. Armonk Assocs., L.P., 823 F.Supp. 224, 226 (S.D.N.Y. 1993). Reconsideration is also appropriate if there is an intervening change of controlling law, new evidence, or the need to correct a clear error or prevent manifest injustice. Doe v. New York City Dep't of Social Servs., 709 F.2d 782, 789 (2d Cir. 1983); Casino, LLC v. M/V Royal Empress, No. 98-CV-2333, 1998 WL 566772, at *1 (E.D.N.Y. Aug. 21, 1998).

Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been fully considered. See Caleb & Co. v. E.I. Du Pont De Nemours & Co., 624 F.Supp. 747, 748 (S.D.N.Y. 1985). In deciding a Local Rule 6.3 motion, the court will not allow a party to use the motion as a substitute for an appeal from a final judgment. See Morser v. AT&T Information Systems, 715 F.Supp. 516, 517 (S.D.N.Y. 1989); Korwek v. Hunt, 649 F.Supp. 1547, 1548 (S.D.N.Y. 1986). Accordingly, a party in its motion for reconsideration "may not advance new facts, issues or arguments not previously presented to the court." Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., No. 86-CV-6447, 1989 WL 162315, at *3 (S.D.N.Y. Aug. 4, 1989).

Petitioner's Motion for Reconsideration

In his letter brief in support of his motion for reconsideration, petitioner argues that I should consider whether § 265.02(1) unconstitutionally infringes upon his Second Amendment right to bear arms in light of the District of Columbia Circuit's opinion in Parker et al. v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), which held the Second Amendment protects an individual right to bear arms and accordingly concluded that certain District of Columbia statutes violated this right.

Petitioner has not presented any factual matters or controlling decisions the Court has overlooked. Petitioner, in his reply brief in support of his habeas petition, cited to United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) for the proposition that the Second Amendment right to "keep and bear arms" is an individual, rather than a collective, right. In his motion for reconsideration, petitioner now cites Parker for the same proposition.*fn4 The Parker decision, like the Emerson decision, is not controlling on this Court. Indeed, the only controlling authority is the Second Circuit's decision in Bach v. Pataki, 408 F.3d 75 (2d Cir. 2005), which makes clear that the Second Amendment imposes no limitation on New York State's ability to ban outright the possession of certain weapons by an individual convicted of any crime, even if the crime is a seventeen year-old misdemeanor and the possession occurs only in the individual's home, as in petitioner's case. See also Maloney v. Cuomo, 470 F. ...


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