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Taylor v. Cuomo


January 3, 2008


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


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.


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.


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. Supp.2d 205, 214 (E.D.N.Y. 2007) (citing Bach as controlling and holding "[t]he Second Amendment does not limit New York State's ability to ban the possession of certain weapons"). Nor has petitioner demonstrated a manifest injustice. Munafo, 381 F.3d at 105.

In any event, reconsideration of my November 13, 2007 Memorandum Opinion & Order in light of Parker would be academic. This is so because I denied petitioner's application for habeas relief on the ground that it was barred by the 1996 Antiterrorism and Effective Death Penalty Act's ("AEDPA") one-year statute of limitations, Mem. Op. at 7 and 10. I addressed petitioner's arguments regarding the constitutionality of § 265.02(1) because I read petitioner's brief generously to include an argument that he was actually innocent because § 265.02(1) was unconstitutional and that therefore AEDPA's statute of limitations did not apply. Mem. Op., at 10, n. 7.*fn5 I then determined that petitioner had not made a credible claim of actual innocence and his constitutional claims were accordingly time-barred. Id. at 10.*fn6

My conclusion that petitioner had not made a credible claim of actual innocence, and was thus subject to AEDPA's one-year statute of limitations, was not premised on the constitutionality of § 265.02(1). This is so because a "claim of actual innocence is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits." Herrera v. Collins, 506 U.S. 390, 404 (1993). The constitutionality of § 265.02(1) therefore does not affect my conclusion in finding the claims time-barred.

Petitioner argues for the first time in his reply brief that he is claiming actual innocence as an independent basis for habeas relief, rather than as simply a "gateway." Herrera, 506 U.S. at 404.*fn7 Petitioner did not, however, assert actual innocence as an independent basis for habeas relief in his habeas petition nor did he argue this point in the memoranda of law he filed in support of his petition. Indeed, petitioner, who is represented by counsel, argued only, in a section entitled "Timeliness of Petitioner's Claims," that I should consider his overbreadth and Second Amendment claims because he is actually innocent.*fn8 I therefore applied the correct standard, which, under Doe v. Menefee, 391 F.3d 146, 161-62 (2d Cir. 2004), required petitioner to present "new reliable evidence" which makes it "more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Petitioner failed to satisfy this standard. Petitioner's claim of actual innocence as an independent basis for relief, and the resulting standard for evaluating such a claim, is a new issue that cannot be raised for the first time on a motion for reconsideration.

Accordingly, for the reasons set forth above, petitioner's motion for reconsideration is denied.

Motion for Stay of November 13, 2007 Decision

Petitioner argues in the alternative that, because, on November 20, 2007, the Supreme Court granted certoriari in Parker under the name District of Columbia v. Heller, 07-290,*fn9 I should stay my November 13, 2007 decision pending the Supreme Court's decision. However, even if the Heller decision were decided by the Supreme Court in a manner that supports petitioner's Second Amendment claims, petitioner's constitutional claims would remain time-barred. There is accordingly no reason for me to stay my prior decision pending the Heller decision.*fn10


For the foregoing reasons, petitioner's motion for reconsideration or, in the alternative, a stay is denied. The Clerk is directed to transmit a copy of the within to all parties and the assigned Magistrate Judge.


Charles P. Sifton United States District Judge

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