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Toliver v. Artus

United States District Court, W.D. New York

March 19, 2014

SAMUEL R. TOLIVER, Petitioner,
v.
DALE ARTUS, Superintendent WENDE CORRECTIONAL FACILITY Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Petitioner Samuel R. Toliver ("Petitioner" or "Toliver") was convicted, upon a plea of guilty, of Assault in the First Degree (N.Y. Penal Law § 120.10[4]), and sentenced, as a persistent second felony offender, to fifteen years imprisonment. By Decision and Order dated January 3, 2013, this Court denied Petitioner's application under 28 U.S.C. § 2254 for a writ of habeas corpus (Dkt. No. 28) (hereinafter "the habeas decision"), and judgment was entered on January 4, 2013 (Dkt. No. 19). Toliver appealed the Court's habeas decision, and the Second Circuit dismissed the appeal in a Mandate issued on or about July 24, 2013 (Dkt. No. 25).

Petitioner now seeks reconsideration of the Court's habeas decision, pursuant to Fed.R.Civ.P. 60(b)(3), (6). Dkt. No. 26.

For the reasons that follow, Petitioner's motion is denied.

II. The Motion is Untimely

Rule 60(b) allows a party to seek relief from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; or (5) the judgment has been satisfied. Fed.R.Civ.P. 60(b)(1)-(5). Subsection (6) allows a party to move for "any other reason that justifies relief." Fed.R.Civ.P. 60(b)(6).

Under Rule 60©, the timeliness of a Rule 60(b) motion depends upon which of 60(b)'s six distinct "[g]rounds for relief the movant invokes; that section provides that "[a] motion under Rule 60(b) must be made within a reasonable time-and for reasons (1), (2), and (3), no more than a year after the entry of the judgment." Fed.R.Civ.P. 60©.

Petitioner filed the instant motion in this Court on January 14, 2014 (Dkt. No. 26), [1] one year and ten days after entry of the judgment from which he seeks relief, and thus beyond the one year period applicable to most motions brought under 60(b). Because petitioner has also explicitly invoked subsection (6), however, his motion appears to survive the one-year bar and requires the Court to consider, instead, whether the year and ten day period between judgment and motion is a "reasonable time" within the meaning of 60©. The Court finds that it is not.

Determining whether a motion to vacate has been filed within a reasonable time "requires scrutin[izing] the particular circumstances of the case, and balanc[ing] the interests in finality with the reason for delay." Hom v. Brennan , 840 F.Supp.2d 576, 581 (E.D.N.Y. 2011) (alterations in original) (internal quotation marks and citation omitted); see also DeWeerth v. Baldinger , 38 F.3d 1266, 1275 (2d Cir. 1994). Here, the Court liberally construes Petitioner's statement that he "did not discover or know of the [alleged] fraud until on or about September 28, 2010 and December 12, 2012" as an attempt to explain the delay in filing. Dkt. No. 26 at 2. This argument fails, however, given that both of these dates far precede both the issuance of the Court's habeas decision and Toliver's motion for reconsideration.

Accordingly, Petitioner's motion, made more than one year after this Court's entry of judgment and six months after the Second Circuit dismissed his appeal on July 24, 2013 is time-barred. Courts have found delays of one year and shorter to be unreasonably long in the context of Rule 60(b) motions. See, e.g., Moses v. United States , 97 CIV 2833, 2002 U.S. Dist. LEXIS 16799, 2002 WL 31011864, at *2 (S.D.N.Y. Sept. 9, 2002) (listing decisions that rejected 60(b) motions on timeliness grounds for delays ranging from ten to twenty months) (citations omitted).

Accordingly, the Court finds that Petitioner's motion is untimely.

II. Lack of Jurisdiction

Even if Plaintiff's motion was timely, the Court nonetheless lacks jurisdiction ...


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