The opinion of the court was delivered by: Naomi Reice Buchwald United States District Judge
Petitioner Dwayne Nichols ("petitioner") brings this pro se petition pursuant to Rule 60 of the Federal Rules of Civil Procedure seeking relief from our Memorandum and Order, dated February 21, 2012, which denied his petition for a writ of habeas corpus as untimely. For the reasons stated herein, petitioner's motion is denied.
On February 21, 2012, we issued a Memorandum and Order denying petitioner's petition for federal habeas relief pursuant to 28 U.S.C. § 2254. (M&O at 11.) Without reaching the merits of petitioner's claim for relief, we concluded that the petition was untimely filed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") because more than 365 days had elapsed since his conviction became final on June 11, 2007, 90 days after the New York Court of Appeals denied his application for leave to appeal, as petitioner did not file a petition for certiorari in the United States Supreme Court. (M&O at 5); see 28 U.S.C. § 2244(d)(1)(A) (providing that AEDPA's limitation period shall run from the latest of either the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review); Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding that AEDPA's "limitations period for state prisoners therefore begins to run only after the denial of certiorari or the expiration of time for seeking certiorari").
In so concluding, we determined that two post-conviction motions filed by petitioner had effectively tolled AEDPA's limitations period: his November 6, 2007 petition for a writ of error coram nobis, which was pending until the Court of Appeals denied leave to appeal on May 13, 2008; and his June 12, 2008 CPL § 440.10 motion, which was pending until the Appellate Division denied leave to appeal on December 24, 2008.*fn2 (M&O at 3-4, 5-6.); see 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."). Taking those tolling periods into account, we found that AEDPA's statute of limitations expired on June 30, 2009, 188 days from December 24, 2008, or 365 total days including the 177 days accrued prior to the filing of petitioner's coram nobis petition. (M&O at 6.) We further concluded that petitioner's February 26, 2009 motion for reargument of the Appellate Division's denial of his application for leave to appeal from his § 440.10 motion did not toll the limitations period because it was not properly filed. (M&O at 9); see Smalls v. Smith, No. 05 Civ. 5182 (CS), 2009 WL 2902516 (S.D.N.Y. Sept. 10, 2009) (concluding that motions for reargument that are not properly filed do not toll AEDPA's statute of limitations). Thus, because petitioner did not file his habeas petition until July 8, 2009, we dismissed it as untimely. (M&O at 11.)
Petitioner filed a Notice of Appeal from our February 21, 2012 Memorandum and Order on February 29, 2012, in which he indicated that he intended to apply to us directly for a certificate of appealability. As he did not make a substantial showing of the denial of a constitutional right, we refused to issue a certificate of appealability. See Order, Nichols v. Brown, Case No. 09 Civ. 6825 (NRB) (S.D.N.Y. Mar. 8, 2012), Dkt. No. 11; see 28 U.S.C. § 2253(c)(2); see also Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).*fn3
The Court of Appeals for the Second Circuit thereafter dismissed petitioner's appeal of our denial of his habeas petition, effective April 24, 2012. See Order, Case No. 12-1287 (2d Cir. May 23, 2012).
On February 4, 2013, petitioner filed a motion for relief pursuant to Rule 60 of the Federal Rules of Civil Procedure from our February 21, 2012 Memorandum and Order, in which he alleges that we miscalculated the limitations period applicable to his petition. Although he does not dispute our conclusion with respect to his improperly filed motion for reargument, petitioner contends -- for the first time -- that we erred in determining the tolling periods with respect to his coram nobis petition and his § 440.10 motion. (Rule 60 Mot. ¶ 5.) Specifically, he argues that we erroneously calculated the tolling periods to conclude on the date that final orders were entered with respect to each motion, rather than the date on which he personally received copies of those orders. (Id. ¶¶ 4-5.) Thus, since he alleges that both motions were "pending" for purposes of § 2244(d)(2) until he received copies of the final judgments entered therein, see Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999); People v. Washington, 86 N.Y.2d 853, 854 (N.Y. 1995), petitioner requests that we credit an additional 29 days*fn4 to his limitations period, which would render his original habeas petition timely filed. (Rule 60 Mot. ¶¶ 4-5.)
Federal Rule of Civil Procedure 60(b) states that "[o]n motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding." Fed. R. Civ. P. 60(b). The Rule further provides that the district court may so relieve a party in five enumerated circumstances and, according to the sixth subpart, for "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b)(6). Because none of the first five circumstances applies to petitioner's motion, we address only whether there is "any other reason justifying relief from the operation of the judgment." Id.
Under Second Circuit precedent, "[a] motion for relief from judgment is generally not favored and is properly granted only upon a showing of exceptional circumstances." Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (quoting United States v. Int'l Bhd. of Teamsters, 247 F.3d 370, 391 (2d Cir. 2001)) (internal quotation marks omitted). The burden of proving such circumstances rests on the party seeking relief from judgment. Id. With respect to Rule 60(b)(6)'s catch-all provision specifically, relief from judgment is granted only "where there are extraordinary circumstances or where the judgment may work an extreme and undue hardship." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994).
Generally, a district court may properly determine a Rule 60(b)(6) motion despite the fact that the movant has already taken an appeal from the judgment from which he seeks relief. See Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18 (1976). However, courts have interpreted Standard Oil to permit a district court to consider a Rule 60(b)(6) motion only when "later events" arise that were not previously considered by the appellate court. See, e.g., DeWeerth, 38 F.3d at 1270-71; Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 52 (2d Cir. 1985), cert. denied, 474 U.S. 826 (1985). Otherwise, in the interest of finality, the "law of the case" doctrine bars Rule 60(b)(6) relief when a motion merely attempts to argue what was or could have been finally determined on appeal. See Seese v. Volkswagenwerk, A.G., 679 F.2d 336, 337 (3d Cir. 1982) ("The district court is without jurisdiction to alter the mandate of this court on the basis of matters included or includable in defendants' prior appeal. . . . We thus hold that the Supreme Court's denial of certiorari ended this litigation, and the case was not sub judice when the defendants made their rule 60(b)(6) motion."). Thus, when a movant alleges that the district court's ruling was erroneous based on then-existing law, the proper course for relief is to present that argument on appeal. ...