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Tin Yat Chin v. United States of America

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 21, 2011

TIN YAT CHIN, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.

The opinion of the court was delivered by: Block, Senior District Judge:

MEMORANDUM AND ORDER

On October 25, 2009, the Court denied Tin Yat Chin's motion to vacate the judgment of conviction and sentence entered on February 16, 2006.*fn1 He has now submitted "additional evidence" in support of his argument that the crimes for which he was convicted were perpetrated by one "Frank Kan."

Although not designated as such, Chin's submission is, in substance, a motion for relief from judgment based on newly discovered evidence. See Fed. R. Civ. P. 60(b)(2). Since Chin argues that the evidence requires reconsideration of a claim raised in his original § 2255 motion, his submission is not subject to the limitations on "second or successive" § 2255 motions. See 28 U.S.C. § 2255(h); Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) (holding that Rule 60(b) motion is not successive § 2255 motion if it "attacks the integrity of the previous [§ 2255] proceeding rather than the underlying criminal conviction"). Therefore, the Court may address Chin's submission on its merits.*fn2

As a prerequisite to obtaining relief based on newly discovered evidence, the moving party must show that the evidence "with reasonable diligence . . . could not have been discovered" before the time for seeking reconsideration expired. Fed. R. Civ. P. 60(b)(2). Chin's submission consists entirely of a narrative of "additional personal information" that he allegedly knows about Kan, whom he describes as an "old acquaintance[] back to the 1980's." Letter from Tin Yat Chin (Dec. 27, 2010) (unpaginated). He cannot possibly demonstrate, therefore, that the information was not available to him at the time of his § 2255 motion-or, indeed, at the time of his trial.

Since Chin has not presented any newly discovered evidence, he is not entitled to relief under Rule 60(b)(2).

SO ORDERED.

FREDERIC BLOCK Senior United States District Judge


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