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Gordon v. Poole

January 9, 2008

ERIC GORDON, PETITIONER,
v.
SUPRA. POOLE, RESPONDENT.



The opinion of the court was delivered by: Hon. Hugh B. Scott

(CONSENT)

Order

Petitioner moved for entry of default judgment against respondent due to respondent appearing through the Erie County District Attorney rather than the New York State Attorney General (Docket No. 6) and this Court issued a Report & Recommendations (Docket No. 12, Nov. 19, 2007) recommending denial of that motion. Petitioner executed objections to this Report & Recommendations on November 24, 2007, and those objections were filed on November 27, 2007 (Docket No. 14). On November 27, 2007, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 13). As a result, petitioner's objections were deemed to be a motion for reconsideration of the decision recommended in the Report & Recommendations, see Fed. R. Civ. P. 52(b), 59(e), 60(b) (Docket No. 15).

Responses were due on or before December 21, 2007, with any reply, due on or before January 4, 2008, and the motion then was deemed submitted on that date without oral argument unless otherwise determined by the Court upon review of the papers (id.). Respondent did not file a response. Petitioner then filed an affidavit (Docket No. 16), arguing that he is entitled to a default judgment and that respondent has failed to respond by December 21, 2007 (id. ¶¶ 3, 9).

He reiterates his arguments that the Erie County District Attorney cannot represent respondent, a state official; rather, only the New York State Attorney General (or his assistants) can legally represent respondent in this action construing New York State statutes (id. ¶¶ 10-29, 34-36). Since the Attorney General has "totally declined to appear" on behalf of respondent, petitioner concludes that respondent has defaulted (id. at "Inconclusion" [sic]). He, however, does not address the absence of default judgments in habeas proceedings.

BACKGROUND

Familiarity with this Court's Report & Recommendations (Docket No. 12) is presumed. Briefly, petitioner was indicted by a grand jury in Erie County for burglary in the second degree, criminal possession of a controlled substance, and resisting arrest. On June 21, 2005, petitioner plead guilty to attempted burglary in the second degree, criminal possession of a controlled substance, and resisting arrest. (See Docket No. 5, Resp't Memo. at 1.) Petitioner later was sentenced as a second violent felony offender to a five-year determinate term of imprisonment to be followed by five years of post-release supervision (id. at 1-2). Petitioner appealed this conviction and the New York State Supreme Court, Appellate Division, Fourth Department, affirmed, People v. Gordon, 42 A.D.3d 964, 837 N.Y.S.2d 885 (4th Dep't 2007). Petitioner sought leave to appeal to the New York State Court of Appeals, raising only validity of waiver of appeal and the error in denying motion to suppress statements but not asserting the other (pro se) grounds asserted at the trial and intermediate appellate levels (mainly the grounds now alleged in his present habeas Petition). The Court of Appeals denied leave, People v. Gordon, 9 N.Y.3d 876, 842 N.Y.S.2d 788 (2007).

Petitioner then filed this Petition on July 23, 2007 (Docket No. 1). Respondent, through the Erie County District Attorney, filed an Answer with attached record from the state court proceedings (Docket No. 4). Petitioner moved for a default judgment because respondent's counsel is the Erie County District Attorney (Docket No. 6).

DISCUSSION

I. Reconsideration Standards

Ordinarily, objections to a Magistrate Judge's Report & Recommendations would be considered by a District Judge. See Fed. R. Civ. P. 72(b); W.D.N.Y. Loc. Civ. R. 72.3(a)(3); 28 U.S.C. § 636(b)(1). With the parties consenting to proceed before the Magistrate Judge who rendered the Report & Recommendations at issue here, cf. W.D.N.Y. Loc. Civ. R. 72.3(a)(1) (if parties consent there is no review of interlocutory orders to the District Court), the Court deemed the objections to that R&R by the pro se petitioner to be a motion for reconsideration under Fed. R. Civ. P. 52(b), 59(e), or 60(b) (see Docket No. 15). The Federal Rules do not expressly provide for reconsideration, see Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275 (D. Colo. 1997), but the rules previously cited provide bases for the Court to re-examine its decision.

Under Rule 52(b), on a party's motion (filed no later than ten days after entry of judgment), the Court "may amend its findings--or make additional findings--and may amend the judgment accordingly." Alternatively, under Rule 59(e), a motion to alter or amend a judgment "shall be filed no later than 10 days after entry of the judgment." Here, there has been no entry of judgment, since petitioner was challenging an R&R rather than a Decision & Order and subsequent Judgment entered pursuant to it. Had there been an entry of judgment at the same time as entry of the R&R, petitioner's Objections would have been timely, since both deadlines under the rules and those for objections required ten days after entry or receipt (see Docket No. 12, R&R at 4), see also Fed. R. Civ. P. 6(a) (if time period is less than 11 days, exclude intermediate weekend days and holidays). Rule 59(e) includes motions for reconsideration, treating them as motions to alter or amend the judgment, 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 122 (Civil 2d ed. 1995).

Rule 60(b) also provides a mechanism for the Court to correct mistakes in its proceedings.

"On motion and upon such terms as are just, the court may relieve a party . . . 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 . . ., 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 ...


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