UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
December 9, 2008
JERRY ADAMS, PETITIONER,
V. RAYMOND CUNNINGHAM, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
MEMORANDUM DECISION [Re: Motion at Docket No. 21]
At Docket No. 21 Petitioner Jerry Adams has filed a document entitled "Notice of Appeal and Re-Consideration of Judgment Pursuant to Rule 4 - F.R.A.P." At Docket No. 24 the Court entered its Order that it would treat the document as a timely motion for a new trial or to alter or amend the judgment under Federal Rule of Civil Procedure 59, and ordered a response be filed by Respondent. Respondent filed his opposition at Docket No. 25. No reply was timely filed.
The document entitled "Notice of Appeal and Re-Consideration of Judgment Pursuant to Rule 4 - F.R.A.P." was also docketed at Docket No. 20 as a Notice of Appeal. Normally, a notice of appeal transfers jurisdiction over the matter to the court of appeals, thereby divesting the district court of jurisdiction. There is, however, an exception to this rule. A notice of appeal filed before the district court disposes of a timely motion under Rule 59, the notice of appeal does not become effective until the district court disposes of the motion.*fn1 Thus, if Adams' motion is timely, this Court retains jurisdiction to rule on it.*fn2
Respondent contends that the motion, to the extent that it is considered a motion under Rule 59, is untimely as it was filed more than 10 days after entry of the judgment. The Court disagrees. Judgment was entered on October 16, 2008. The document entitled "Notice of Appeal and Re-Consideration of Judgment Pursuant to Rule 4 - F.R.A.P." was dated October 30, 2008, and file stamped November 3, 2008. Excluding intervening Saturdays and Sundays,*fn3 the tenth day was October 30, 2008. Applying the "mail box" rule and assuming that the "Notice of Appeal and Re-Consideration of Judgment Pursuant to Rule 4 - F.R.A.P." was deposited for mailing on that date, Adams' motion is timely.
III. STANDARD OF REVIEW
In general, no error by the court is a ground for vacating, modifying, or otherwise disturbing a judgment unless required in the interests of justice.*fn4 "That is to say, a trial court should be most reluctant to set aside that which it has previously decided unless convinced that it was based on a mistake of fact or clear error of law, or that refusal to revisit the earlier decision would work a manifest injustice."*fn5 This Court "may alter or amend a judgment to correct a clear error of law or to prevent a manifest injustice."*fn6 Amendment or alteration of the judgment may also be granted upon the introduction of newly discovered evidence or an intervening change in controlling law.*fn7 In this case, the sole basis asserted is that this Court committed a clear error of law, the correction of which is necessary to prevent a manifest injustice. A motion to vacate or amend a judgment, however, "cannot serve as an attempt to re-litigate matters.*fn8
Adams relies principally upon the Second Circuit decision in Earley v. Murray.*fn9 In Earley, the Second Circuit, relying on the Supreme Court's decision in Hill v. United States ex rel. Wampler,*fn10 held that the New York Department of Correctional Services ("DOCS") lacked authority to impose a mandatory period of supervisory relief that was not included in the sentence pronounced by the trial court, vacated the judgment of the district court denying Earley's petition, and remanded the matter for further proceedings consistent with the court's opinion.*fn11 This Court is, of course, bound by the decisions of the Second Circuit.*fn12
Legally, this case is similarly situated with Earley. In both cases DOCS lacked the authority to "correct" an error committed by the sentencing court and compute the sentences imposed accordingly.*fn13 Factually, however, this case differs somewhat from Earley. In Earley, the addition of the mandatory supervised release period subjected Earley to further custody because of the possibility of revocation and additional jail time.*fn14 In this case, according to the DOCS computation, by treating the 1989 sentence as running consecutive to the undischarged portion of the prior sentences, Adams' maximum sentence was extended by two years, two months, and twenty-five days.*fn15 Adams' conditional release date was also extended proportionally.*fn16 This factual difference, because the specter of further custody is more certain than in Earley, presents a more compelling argument in Adams' favor. This Court can perceive of no principled reason not to apply the rationale and holding of Earley to this case.
This Court having overlooked controlling authority, the prior decision was the result of a clear error of law, and a refusal to revisit that prior decision would work a manifest injustice. Accordingly,
IT IS ORDERED THAT the "Notice of Appeal and Re-Consideration of Judgment Pursuant to Rule 4 - F.R.A.P." at Docket No. 21, treated as a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59, is GRANTED.
IT IS FURTHER ORDERED THAT the petition for habeas corpus relief under 28 U.S.C. § 2254 is GRANTED.
IT IS FURTHER ORDERED THAT, unless the People of the State of New York have initiated proceedings in the Kings County Supreme Court to correct the sentence under otherwise applicable New York law within 60 days of the date that the judgment in this matter becomes final upon direct review, or the time for further direct review has lapsed, and the Kings County Supreme Court corrects the sentence imposed, the New York Department of Correctional Services must recompute the release dates for Petitioner treating the sentence imposed by the Kings County Supreme Court in this case in June 1989 as running concurrently with the undischarged portion, if any, of the sentences imposed in 1981 and 1985.
The Clerk of the Court is directed to enter an amended judgment accordingly.