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Beras v. United States

United States District Court, Second Circuit

June 3, 2013

ROBERTO BERAS, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

Roberto Beras, Register # 45865-054 Elkton Federal Correctional Institution, Lisbon, OH, Petitioner (Pro Se).

Tatiana R. Martins, Assistant United States Attorney, New York, NY, for Respondent.

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge.

I. INTRODUCTION

Petitioner Roberto Beras, pro se, moves for reconsideration of my March 20, 2013 Opinion and Order (the "Order") denying his petition for habeas corpus (the "Petition") under 28 U.S.C. § 2255 ("Section 2255").[1] For the following reasons, the motion is denied.

II. JURISDICTION AND TIMELINESS

The Second Circuit has held that an entry of judgment under Rule 58 of the Federal Rules of Civil Procedure is not required after an order disposing of a petition under Section 2255, because habeas proceedings represent a further step in the criminal case, not an independent civil case requiring an independent final judgment.[2] However, a motion under Rule 59(e) to amend or correct an order disposing of a Section 2255 may still be brought, although such an order is not a "judgment...."[3] Such a motion for reconsideration "is... treated as a Rule 59(e) motion if filed within [fourteen] days of entry of the challenged order and as a Rule 60(b) motion if filed thereafter...."[4] Beras's motion for reconsideration is deemed filed on April 12, 2013, when he tendered it to prison officials, [5] and so it is a motion under Rule 60(b).

On April 15, 2013, Beras filed a notice of appeal from the Order.[6] Normally the filing of a notice of appeal divests the district court of jurisdiction.[7] But because Beras's motion for reconsideration was pending when he filed a notice of appeal, the notice of appeal will not become effective until this order disposing of Beras's motion for reconsideration has been entered.[8] I therefore have jurisdiction to consider this motion.

III. STANDARD OF REVIEW

Motions for reconsideration are governed by Local Rule 6.3 and are committed to the sound discretion of the district court.[9] "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'"[10] "Typical grounds for reconsideration include an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'"[11] Yet, because "the purpose of Local Rule 6.3 is to ensure the finality of decisions and to prevent the practice of a losing party examining a decision and then plugging the gaps of a lost motion with additional matters, '"[12] the Rule must be "narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court."[13] Specifically, "a motion for reconsideration is not a substitute for [an] appeal."[14]

IV. DISCUSSION[15]

A. Ineffective Assistance for Failure to Object to Partial Juror

The first ground for reconsideration raised by Beras was overlooked in the Order. In the interest of affording Beras "one full opportunity to seek collateral review[, ]"[16] I will consider this ground as an invitation to correct the record under Rule 60(a), [17] rather than as a motion for reconsideration under Rule 60(b).

The overlooked ground is as follows. In the Petition, Beras raised a claim for ineffective assistance of counsel based on his trial counsel's failure to move to dismiss a juror who served as a police officer for the City of New York.[18] Specifically, Beras claimed that: (1) the selection of the juror was improper under 28 U.S.C. § 1863(b)(6) ("Section 1863") of the Jury Selection and Service Act ("JSSA"), 28 U.S.C. §§ 1861-1878; and (2) ...


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