The opinion of the court was delivered by: Hon. Thomas J. Mcavoy, Senior U.S. District Judge
Presently before the Court is Petitioner Malcolm Baptiste's motion, pursuant to Rule 60(b)(1) and (b)(6), to vacate the January 21, 2011 Decision and Order denying his habeas petition. Dkt. No. 31. For the reasons that follow, the motion is denied.
Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 7, 2008, in which he challenged a 1996 judgment of conviction in Schenectady County Court of two counts of second degree depraved indifference murder (N.Y. PENAL LAW § 125.25(2)) and other, related charges. Dkt. No. 1 at 6; Dkt. No. 5, Memorandum of Law ("Mem.") at 10-23. In his petition, Petitioner argued that the Appellate Division's determination that New York law on depraved indifference murder changed when the New York Court of Appeals decided People v. Payne, 3 N.Y.3d 266 (2004), was an unreasonable application of Fiore v. White, 531 U.S. 225 (2001) (per curiam) and Bunkley v. Florida, 538 U.S. 835 (2003) (per curiam). Dkt. No. 5, Memorandum of Law, at 5-17. Petitioner also argued that under the law as it existed when his conviction became final, the evidence was insufficient to sustain his conviction for depraved indifference murder because his conduct was "solely consistent with intent." Dkt. No. 5, Mem. at 14-18.*fn1 In a Decision and Order filed January 21, 2011, the petition was denied in its entirety and dismissed. Dkt. Nos. 26-27. The Court also declined to issue a certificate of appealability, finding that Petitioner failed to make a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Dkt. No. 26 at 44.
On February 11, 2011, Petitioner's attorney filed a Notice of Appeal, and moved for a certificate of appealability in the Second Circuit Court of Appeals. Dkt. No. 28; Baptiste v. Ercole, No. 11-533-pr, Dkt. No. 25. On June 29, 2011, the Second Circuit denied a certificate of appealability and dismissed the appeal because Petitioner failed to make a "substantial showing of the denial of a constitutional right." Id. (citing 28 U.S.C. § 2253 (c)). The Second Circuit's mandate issued on August 4, 2011. Id. at Dkt. No. 51.
On August 9, 2011, Petitioner's attorney made a motion to recall the Second Circuit's mandate, and to reconsider the denial of a certificate of Appealability. The motion was based upon the Second Circuit's August 9, 2011, decision in Rivera v. Cuomo, 649 F.3d 132 (2d Cir. 2011). See Baptiste v. Ercole, No. 11-533-pr, at Dkt. No. 54. Petitioner's motion was denied on August 25, 2011. Id. at Dkt. No. 66.
II. Motion to Vacate Judgment
Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief from a prior judgment under a limited set of circumstances. Subdivisions (b)(1) and (b)(6), the provisions under which Petitioner brings his motion, permit relief if the prior decision was the result of "mistake, inadvertence, surprise, or excusable neglect" or "any other reason that justifies relief." FED. R. CIV. P. 60(b). A Rule 60(b) motion may be used to attack "the integrity of the previous habeas proceeding," but it may not be used as a vehicle to attack "the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004); see Gonzalez v. Crosby, 545 U.S. 524, 529 (2005) (a Rule 60(b) motion may be appropriate under 28 U.S.C. § 2254 if the motion "attacks not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.").*fn2
Relief pursuant to Rule 60 (b)(6) should be granted only in "extraordinary circumstances."
Gonzalez, 545 U.S. at 536; Harris, 367 F.3d at 77. While changes in decisional law generally do not support relief under Rule 60(b)(6), a "supervening change in governing law that calls into serious question the correctness of the court's judgment" may constitute an extraordinary circumstance justifying relief. Sargent v. Columbia Forest Prob., Inc., 75 F.3d 86, 90 (2d Cir. 1996); see Devino v. Duncan, 215 F. Supp. 2d 414, 417 (S.D.N.Y. 2002) (a Rule 60(b) motion may be granted when an intervening development in the law constitutes an extraordinary circumstance.).
Petitioner's argument is that this Court incorrectly denied his habeas petition on the merits, based upon the Second Circuit's subsequent decision in Rivera v. Cuomo, 649 F.3d 132 (2d Cir. 2011). Petitioner argues that Rivera constituted a "supervening change in the law" that "compels the conclusion that this Court's original decision was mistaken." Dkt. No. 31, Memorandum of Law in Support of Petitioner's Motion Pursuant to Fed. R. Civ. Pro. 60(B) ("P. Mem.") at 8; see Dkt. No. 34 (Reply Memorandum of Law in Support of Petitioner's Motion Pursuant to Fed. R. Civ. Pro. 60(b)). This Court disagrees.
It is important to note that Petitioner has already made a motion, asking that the Second Circuit recall its mandate, based upon the same arguments he makes in this motion, and that the Second Circuit denied his motion. Baptiste v. Ercole, No. 11-533-pr, at Dkt. No. 66. Thus, it is clear that the Second Circuit does not believe that Petitioner's argument has merit. In any event, the Rivera decision does not support Petitioner's claim that this Court's original decision was based upon ...