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Frank Carbone, A/K/A Steve Ascanio v. Raymond J. Cunningham

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 22, 2011

FRANK CARBONE, A/K/A STEVE ASCANIO,
PETITIONER,
v.
RAYMOND J. CUNNINGHAM,
RESPONDENT.

The opinion of the court was delivered by: John G. Koeltl, District Judge:

MEMORANDUM OPINION AND ORDER

The Court has received a Rule 60(b) motion. The respondent should respond to this motion by January 30, 2012. The petitioner should reply by February 20, 2012.

In their papers, the parties should address whether the Rule 60(b) motion should be considered on the merits or instead treated as a second or successive habeas petition. See, e.g., Gonzalez v. Crosby, 545 U.S. 524, 538 (2005) ("We hold that a Rule 60(b)(6) motion in a § 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction."); Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) ("[R]elief under Rule 60(b) is available for a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction.").

20111222

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