The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
Petitioner Robie J. Drake has filed a motion for relief under Fed. R. Civ. P. 60(b) ("motion to reopen") (Docket No. 77), requesting that the Court reopen and amend the judgment entered on March 4, 2009 (Docket No. 76), which, pursuant to the Mandate issued by the Second Circuit on March 3, 2009 (Docket No. 74), conditionally granted Drake's petition for a writ of habeas corpus and directed that he be released unless the State of New York provided him a new trial within 90 days. For the reasons explained below, petitioner's motion is denied but is recharacterized as a new petition for habeas corpus, pursuant to 28 U.S.C. § 2254.
On December 1, 1982, petitioner was convicted in Niagara County Court of two counts of second degree murder, and sentenced to consecutive terms of imprisonment of 20 years to life. His petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed with this Court in 1999, and was dismissed by the Hon. John T. Elfvin in 2001. (Docket Nos. 22, 23). Thereafter, in 2003, the Second Circuit vacated the judgment of dismissal and remanded for discovery on the question of whether the prosecution knew or should have known that its expert witness was committing perjury. Drake v. Portuondo, 321 F.3d 338 (2d Cir. 2003). On remand, following discovery, Judge Elfvin granted respondent's motion for summary judgment and judgment was issued dismissing the petition. (Docket Nos. 59, 60). Petitioner appealed, and by Opinion issued January 23, 2009, the Second Circuit reversed and remanded "for the entry of judgment conditionally granting the writ of habeas corpus and ordering Drake's release unless the State provides him with a new trial within 90 days." Drake v. Portuondo, 553 F.3d 230, 247-48 (2d Cir. 2009). The Mandate of the Second Circuit was filed on March 3, 2009 ("Mandate"), (Docket No. 74), and by Order dated March 4, 2009, this Court ordered, pursuant to the Mandate, that petitioner's petition for a writ of habeas corpus be conditionally granted and that petitioner be ordered released unless the State provided him with a new trial within 90 days. (Docket No. 75). In its March 4 Order, the Court also denied petitioner's motion for an extension of time to begin his new trial, noting that
The Second Circuit explicitly directed the "entry of judgment conditionally granting the writ of habeas corpus and ordering Drake's release unless the State provides him with a new trial within 90 days." Entering judgment accordingly is all this Court is empowered to do. Any requests for extensions of time or a stay of the Second Circuit's Order must be made to the Second Circuit.
Order entered March 4, 2009, ¶ 3) (Docket No. 75).*fn2 Judgment in accordance with the Mandate was entered on the same date. (Docket No. 76).
Before the commencement of the retrial in state court, Drake commenced an Article 78 proceeding in the Appellate Division, Fourth Department, New York State Supreme Court, seeking a writ of prohibition to bar retrial on double jeopardy grounds. (See Docket No. 77, at Exhibits A-C). By Order entered April 7, 2009, the Appellate Division denied petitioner's application for a writ of prohibition (Docket No. 77, at Exhibit F), and his application for leave to appeal was denied by the New York Court of Appeals on September 1, 2009. Drake v. Kloch, 13 N.Y.3d 755, 886 N.Y.S.2d 90 (2009).
Thereafter, beginning on March 8, 2010, petitioner was retried in Niagara County Supreme Court before the Hon. Richard Kloch, at the conclusion of which petitioner was again convicted of two courts of second degree murder. (Docket No. 77, ¶ 27). Judgment was entered upon the new convictions on May 27, 2010. (Docket No. 79 at p. 2).
Whether the Court retains jurisdiction to reopen the March 4, 2009 Judgment Petitioner's motion to reopen seeks to have the Court reopen and amend the judgment issued on March 4, 2009, so as to grant the writ of habeas corpus unconditionally, and discharge petitioner from custody (Docket No. 77) (Affidavit in Support of Motion for Relief, ¶ 2 and p. 19 ["WHEREFORE" clause]). The motion to reopen is based upon petitioner's argument that his retrial was barred by the Double Jeopardy Clause of the Fifth Amendment and the Supreme Court's decision in Oregon v. Kennedy, 456 U.S. 667 (1982). (See Docket No. 77 at ¶¶ 16, 28-29 and Docket No. 78 [Petitioner's Memorandum of Law]).*fn3
Petitioner's motion is brought pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure, pursuant to which a court may "relieve a party.from a final judgment, order, or proceeding for" a number of enumerated reasons, including "any other reason that justifies relief." Fed. R. Civ. P. 60(b)(6).*fn4 Petitioner claims that under this catch-all provision, "justice and the extraordinary circumstances of this case" require that the judgment "be reopened and amended to grant the writ of habeas corpus unconditionally and order the petitioner discharged from custody on the ground that his continued prosecution and confinement is in violation of the double jeopardy clause of the Fifth Amendment." (Docket No. 78 at p. 3). The arguments in support of petitioner's request for relief under Rule ...