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Gorder v. Allerd

March 26, 2008

FRED E. VAN GORDER, PETITIONER,
v.
M. ALLERD, ACTING SUPERINTENDENT, AND GLENN S. GOORD, RESPONDENTS.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. INTRODUCTION

Petitioner Fred E. Van Gorder ("Van Gorder") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of attempted first degree rape (N.Y. Penal Law §§ 110.00, 130.35)) and one count of endangering the welfare of a child (N.Y. Penal Law § 260.10(1)). On September 26, 2005, this Court dismissed his petition on the merits and denied a certificate of appealability. The Court of Appeals for the Second Circuit subsequently dismissed Van Gorder's application for a certificate of appealability finding that.

Presently before the Court is a pleading filed by Van Gorder titled "Notice of Motion for Review and Objections" (Docket No. 92). In it Van Gorder has requested that Chief United States District Judge Richard Arcara "review the arbitrary and capricious decision and order of Magistrate Judge Bianchini, set aside the decision and order as a matter of law; and for any such other and further relief this Court deems to be just and proper in the interest of justice to the pro se petitioner." Petitioner's Notice of Motion (Docket No. 92). In the accompanying "Affidavit in Support of Motion for Review and Objections", Van Gorder details the many alleged errors this Court committed in deciding his habeas claims. For the reasons that follow, Van Gorder's "Motion for Review and Objections" is denied with prejudice.

II. DISCUSSION

A. Petitioner is Not Entitled to Review of the Denial of his Habeas Petition by a District Judge

As an initial matter, I note that because Van Gorder consented to final disposition of the petition by a magistrate judge, he is not entitled to submit objections to my Decision and Order for review by a district judge. See 28 U.S.C. § 636(c)(1). Therefore, that aspect of Van Gorder's application seeking review of the denial of his habeas petition by a district judge must be denied.

B. Petitioner's Motion Cannot be Treated as a Motion for Reconsideration

Van Gorder's motion was not made pursuant to any particular section of the Federal Rules of Civil Procedure but it was docketed as a motion for reconsideration. "The Federal Rules do not expressly provide for reconsideration[.]" Young v. Poff, No. 04CV320, 2006 WL 1455482, at *2 (W.D.N.Y. May 22, 2006) (Scott, M.J.) (citing Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275 (D. Colo.1997)). However, Rule 59(e) can encompass motions for reconsideration, treating them as motions to alter or amend the judgment. Id. (citing 11 CHARLES A. WRIGHT, ARTHUR R. MILLER & MARYKAYKANE, FEDERAL PRACTICE AND PROCEDURE § 2810.1, at 122 (Civil 2d ed.1995)). A Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment. Furthermore, Rule 59(e) contains a strict time-line: motions must be filed no later than 10 days after the entry of judgment. See FED. R. CIV. P. 59(e); Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2d Cir. 2000) (holding that ten-day time limit for motions for reconsideration is "uncompromisable" and cannot be extended). Judgment in this case was entered on September 26, 2005; Van Gorder's motion was filed several months later, on February 13, 2006. Not only was it filed in excess of the time limit for filing a motion for reconsideration, I note that it also was filed well past the 10-day time period in which a party may file objections to a magistrate judge's report and recommendation. Therefore, not only am I precluded from treating Van Gorder's motion as a motion for reconsideration, I cannot consider his motion as objections to a report and recommendation to be forwarded to the district judge. This is because Van Gorder consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).

Under similar circumstances, other habeas courts have treated belatedly filed motions for reconsideration as motions seeking vacatur of the judgment under Rule 60(b). Accordingly, I will treat Van Gorder's motion as if he had brought it pursuant to Rule 60(b).

C. Analysis of Petitioner's Application as a Rule 60(b) Motion

Under Rule 60(b), a court may grant relief from a final judgment 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 ...


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