The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
ORDER [Re: Motion at Docket No. 33]
At Docket No. 33, Petitioner Cedric Golston, a state prisoner appearing pro se, has filed a motion for an order under Federal Rule of Civil Procedure 60 vacating the judgment entered February 27, 2008, at Docket No. 26.*fn1 The record in this case indicates that an appeal of that judgment is pending before the Court of Appeals for the Second Circuit, Case No. 08-5088-PR.*fn2
The filing of the Notice of Appeal transferred jurisdiction to the Court of Appeals and divested this Court of jurisdiction over those aspects of the case involved in the appeal.*fn3 As the appeal was taken from the final judgment, this Court lacks jurisdiction to grant the relief requested. This Court does, however, have jurisdiction to entertain and deny the motion.*fn4
Golston seeks relief under Rule 60(b) paragraphs (1) "mistake, inadvertence, surprise or excusable mistake," and (6) "any other reason justifying relief from operation of the judgment." Golston argues that the Court erred when it either failed to rule on his second point (that the subsequent judgments of the successor judge were invalid) or in denying his petition without an examination of the facts in the record. Rule 60(b)(1) is directed to mistakes by the party or the party's legal representative, not the court. Federal Rule of Civil Procedure 59 provides the procedural vehicle by which a district court may amend or alter its judgment for mistakes made by the court.*fn5 Rule 60 is not a substitute for appeal and may not be used to relitigate the merits of the case.*fn6 Golston, while acknowledging this rule, relying on Gonzalez v. Crosby,*fn7 seeks to avoid it by contending that he is challenging the "integrity of the process" used in deciding the factual issue in question in his second point. Golson's reliance is misplaced. Gonzalez simply held that a Rule 60(b) motion was not a successive petition because the basis for the motion was an attack on the integrity of the habeas process, not the state court conviction.*fn8 Gonzalez did not hold that a Rule 60(b) motion was the appropriate vehicle to challenge the decision of the court on the merits. Specifically, Golston argues that this Court erred in not reviewing the extent of the rulings made by Judge Eidens prior to his disqualification. Golston's argument challenges the decision of this Court, which is not the proper subject of a Rule 60(b) motion.
What Golston misses is that to prevail on his second point he had to first prevail on his first point, i.e., that the Schenectady County Court lacked jurisdiction. Once it was established that the Schenectady County Court did not lose jurisdiction, Golston's second point became moot. That is, there were no further constitutional issues for review by this Court. Golston argues in the pending motion that the factual determination by the Appellate Division was erroneous, and if the Appellate Division had got the facts right, it would have made the trial void.*fn9
Even if this Court were inclined to vacate the judgment to specifically address Golston's second point, Golston would not prevail. In his petition, Golston argued that not only were the arraignment and plea void, but every matter decided by Judge Eidens was void. Thus, according to Golston, his subsequent trial and conviction were invalid. In his petition Golston cobbled together, mostly out of context, several statements by the United States Supreme Court to support his contention that he was not fairly apprised of the charges against him and was denied a fair trial before an impartial tribunal. It is beyond cavil that Golston was constitutionally entitled to be fairly apprised of the charges against him and a fair trial before an unbiased tribunal. Whatever his arguments may be under New York law, which are beyond the purview of this Court in a habeas proceeding, in the constitutional context he received fair notice of the charges and a trial before an unbiased tribunal (jury trial presided over by Judge Hoye).
Judge Eidens was statutorily disqualified under New York law.*fn10 There is no evidence in the record, indeed Golston does not allege, that Judge Eidens bore any actual bias or prejudice. Although he enumerates a number of pretrial matters heard and decided by Judge Eidens, he challenges the validity of those proceedings solely on the basis of Judge Eidens' statutory disqualification. Golston's reliance on Tumey v. Ohio*fn11 is also misplaced. Judge Eidens, as well as members of his family, was a depositor at the institution Golston allegedly robbed, and it held the mortgage on his residence. Unlike the Mayor in Tumey, who personally received the costs assessed against the defendant if convicted, but nothing if acquitted, Judge Eidens did not have "a direct, personal, substantial pecuniary interest in reaching a conclusion against [Golston] in the case."*fn12 Suffice it to say that the Supreme Court has never extended the constitutional holding in Tumey to either situation presented in this case: (1) the judge was not the trial judge or (2) the pecuniary interest, if any, in the outcome is too remote to warrant a presumption of bias. Where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn13
Golston is not entitled to relief under Federal Rule of Civil Procedure 60. Accordingly, IT IS ORDERED THAT the Motion at Docket No. 33 is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn14 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals. ...