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Gerome Mccullough v. Gary H. Filion

November 7, 2012

GEROME MCCULLOUGH, PETITIONER,
v.
GARY H. FILION, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

In 2001, Gerome McCullough ("McCullough" or "Petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a judgment entered in Monroe County Court on February 28, 1996, following a jury verdict convicting him of two counts of murder in the second degree and three counts of robbery in the first degree. The parties consented to disposition of the matter by a magistrate judge pursuant to 28 U.S.C. § 636(b), and on March 31, 2005, Magistrate Judge Victor E. Bianchini dismissed the petition and declined to issue a certificate of appealability. Judgment was entered the same day. On July 21, 2006, the United States Court of Appeals for the Second Circuit issued a Mandate dismissing McCullough's application for a certificate of appealability, agreeing with Magistrate Judge Bianchini that McCullough had not made a substantial showing of the denial of a constitutional right. The Mandate was filed in this Court on September 21, 2006.

For the following seven years, there was no activity by McCullough. Then, on October 19, 2012, McCullough filed a "Notice of Motion Pursuant to Rule 60(b)(1)(6) of the Federal Rules of Civil Procedures [sic]". (Dkt. #17). In the motion, McCullough seeks (1) the appointment of counsel, (2) an evidentiary hearing, and (3) an order vacating the judgment dismissing his petition pursuant to subsection (3) of the Rule 60(b) of the Federal Rules of Civil Procedure.

As Magistrate Judge Bianchini's term in this District has concluded, this matter has been transferred to the undersigned for further proceedings. For the reasons set forth below, McCullough's motion is denied in all respects.

II. Discussion

A. Rule 60(b) Relief

Rule 60(b) of the Federal Rules of Civil Procedure, properly applied, "strikes a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker, 793 F.3d 58, 61 (2d Cir. 1986) (citations omitted). The moving party bears the burden of proof and must convince the reviewing court that "exceptional circumstances" exist for vacating the judgment. United States v. International Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001). All Rule 60(b) motions must "be made within a reasonable time," Fed. R. Civ. P. 60(b), and motions under Rule 60(b)(1), (2) and (3) must be made within one year after the judgment, id., 60(c). The Second Circuit also requires that the evidence in support of the motion be "highly convincing," Koticky v. United States Fidelity & Guar. Co., 817 F.2d 6, 9 (2d Cir. 1987) (quotation omitted); that the movant show good cause for the failure to act sooner, id. (citations omitted); and that no undue hardship be imposed on the opposing parties, id. (citation omitted).

Pursuant to Rule 60(b), "[o]n motion and just terms, a court may relieve a party or its legal representative from a final judgment, order, or proceeding" for any of the following reasons:

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

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying ...


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