Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Glover v. Filion

United States District Court, W.D. New York

March 27, 2014

LAMAR GLOVER, Petitioner,
v.
GARY FILION, Superintendent, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Petitioner Lamar Glover ("Glover") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was denied by Magistrate Judge Victor E. Bianchini on August 14, 2009.[1] Glover v. Filion, No. 04-CV-6329(VEB), 2009 WL 2512858 (W.D.N.Y. Aug. 14, 2009). Judgment dismissing the petition was entered August 17, 2009. Glover did not pursue an appeal to the Second Circuit.

On August 10, 2012, Glover filed a motion to vacate the judgment (Dkt #16) pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure ("Rule 60(b)(6)"). This case was transferred to the undersigned on March 14, 2014. As discussed further below, the Court finds that Glover cannot show the "extraordinary circumstances" required for relief under Rule 60(b)(6), and therefore his motion to vacate must be denied.

II. Background

A. State Criminal Proceedings

Glover was convicted following a jury trial on charges of second degree murder and second criminal possession of a weapon. On direct appeal, Glover's conviction was unanimously affirmed. His subsequent application for a writ of error coram nobis challenging appellate counsel's effectiveness was summarily denied.

B. Federal Habeas Proceeding

Glover then filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising essentially the same claims he asserted on direct appeal and in his coram nobis application. Magistrate Judge Bianchini rejected Glover's weight of the evidence claim as not cognizable on habeas review. With regard to Glover's claims based on prosecutorial misconduct and the denial of his right under New York Criminal Procedure Law ("C.P.L.") § 380.50(1) to make a statement at sentencing, the magistrate judge held that these claims were procedurally defaulted because the Appellate Division relied upon an adequate and independent state ground (the contemporaneous objection rule) to deny them. Magistrate Judge Bianchini also held that the C.P.L. § 380.50(1) claim was not cognizable on federal habeas review. Finally, the magistrate judge rejected Glover's ineffective assistance of appellate counsel claim as without merit. Specifically, Magistrate Judge Bianchini found that appellate counsel was not deficient in failing to argue that trial counsel erroneously failed to raise a justification defense, since such a defense was not plausible given the proof developed at trial.

III. Discussion

A. The Rule 60(b) Standard

Rule 60(b) "allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence." Gonzalez v. Crosby , 545 U.S. 524, 528 (2005). Subsection (6) of Rule 60(b) provides that "[o]n motion and just terms, the court may relieve a party... from a final judgment, order, or proceeding for... any other reason that justifies relief." FED. R. CIV. P. 60(b)(6). This subsection thus "confers broad discretion on the trial court to grant relief when appropriate to accomplish justice and it constitutes a grand reservoir of equitable power to do justice in a particular case." Marrero Pichardo v. Ashcroft , 374 F.3d 46, 55 (2d Cir. 2004) (quotation marks and alteration omitted). Before a movant can avail himself of Rule 60(b)(6), however, he must present the court with "extraordinary circumstances." Gonzalez , 545 U.S. at 536; see also Stevens v. Miller , 676 F.3d 62, 67 (2d Cir. 2012).

In habeas corpus proceedings, Rule 60(b) is further limited by the restrictions placed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") on the filing of second or successive applications under section 2254. See Gonzalez , 545 U.S. at 530-33. A post-judgment motion may only be treated as a proper request for relief under Rule 60(b) if it "relates to the integrity of the federal habeas ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.