UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
November 10, 2008
MAXIMO REYES, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Sand, J.
MEMORANDUM AND ORDER
Petitioner Maximo Reyes brings this motion under Fed. R. Civ. P. Rule 60(d)(3) to set aside the judgment of this Court, alleging that the Government perpetrated a fraud on the Court by failing to disclose information concerning his deportation from the Dominican Republic.*fn1 For the reasons set forth below, Plaintiff's motion is denied.
It is settled law in this Circuit that while a Rule 60 motion may be used to "set aside a habeas denial" in limited circumstances, "it cannot be used to seek habeas relief." Harris v. United States, 367 F.3d 74, 80 (2d Cir. 2004). Reyes is not seeking to set aside a denial of habeas relief. Rather, he is asking this Court to determine that a fraud was perpetrated and then to discharge him from custody. Without a prior denial of habeas relief, his requests via Rule 60(d)(3) constitute an impermissible attack on his conviction. See Tang Xue Dan v. United States, No. 00-CV-284, slip op., 2007 WL 2141545, at *1 (S.D.N.Y. July 25, 2007); Mercedes v. Kelly, No. 99-CV-2473, slip op., 2007 WL 1522613, at *3 (S.D.N.Y. May 23, 2007).