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Melvin Lee v. Michael Cully

October 24, 2011

MELVIN LEE, PETITIONER,
v.
MICHAEL CULLY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

On May 10, 2011, this Court denied the petition for a writ of habeas corpus filed by pro se petitioner Melvin Lee ("Lee" or "Petitioner") and denied a certificate of appealability. See Docket No. 16. Judgment was entered dismissing the petition on May 11, 2011. On June 9, 2011, Lee filed a pleading titled "Motion for Reconsideration Fed. R. Civ. P. 60(b) 1, 2 (c) and Federal Rules of Appellate Procedur [sic] Rule 10B(2)." (Docket No. 20). Lee appears to argue that the Court erroneously denied his ineffective assistance of trial counsel claim. The Court reads his pleadings to stated that trial counsel did not adequately investigate the case and erroneously failed to call witnesses--in particular, one Bishop Edward U. Kmiec who purportedly would have served as a character witness, and a "number" of other unnamed witnesses.

II. Discussion

Lee's motion was titled a motion for reconsideration. "'The Federal Rules do not expressly provide for reconsideration[.]'" VanGorder v. Allerd, 2008 WL 822018, at *1 (W.D.N.Y. Mar. 26, 2008) (quoting Young v. Poff, No. 04CV320, 2006 WL 1455482, at *2 (W.D.N.Y. May 22, 2006) (Scott, M.J.) (citing Sierra Club v. Tri-State Generation & Transmission Ass', 173 F.R.D. 275 (D. Colo.1997)). However, Rule 59(e) can encompass motions for reconsideration, treating them as motions to alter or amend the judgment. Id. (citing 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 122 (Civil 2d ed.1995)). A Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment. Furthermore, Rule 59(e) contains a strict time-line: motions must be filed no later than 10 days after the entry of judgment. See Fed. R. Civ. P. 59(e); Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397, 401 (2d Cir. 2000) (holding that ten-day time limit for motions for reconsideration is "uncompromisable" and cannot be extended). Here, Lee's "Motion for Reconsideration" cannot be treated as such because it was filed past the 10-day time limit. See VanGorder, 2008 WL 822018, at *1.

However, Lee does cite Fed. R. Civ. P. 60(b), and therefore the Court will treat the motion as requesting relief from a final judgment under that rule. Under Rule 60(b), a court may grant relief from a final judgment for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial . . .;

(3) fraud . . ., misrepresentation, or other misconduct of an adverse party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or

(6) any other reason justifying relief from the operation of the judgment.

Fed. R. Civ. P. 60(b)(1-6). Importantly, Rule 60(b) is not a vehicle for rearguing the merits of the challenged decision. Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir.1989) ("[A] Rule 60(b)(3) motion cannot be granted absent clear and convincing evidence of material misrepresentations and cannot serve as an attempt to relitigate the merits.") (citations omitted).

Rather than standing in for an ordinary appeal, Rule 60(b) provides relief only in exceptional circumstances. Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986); see also Harris v. United States, 367 F.3d 74, 77 (2d. Cir. 2004) ("[A]n attack on the integrity of a previous habeas proceeding using ...


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