United States District Court, E.D. New York
MEMORANDUM & ORDER
RAYMOND J. DEARIE, District Judge.
Pro se habeas petitioner Eric Claudio moves this Court to vacate its September 30, 2002 judgment denying and dismissing his petition, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, because Respondent did not submit the full trial record to either this Court or the Second Circuit Court of Appeals, which affirmed based on "each party's rendition of the record that was not specifically controverted by the other party." Claudio v. Portuondo, 74 F.Appx. 120, 123 (2d Cir. 2003). We deny the motion because it was not brought within a reasonable time, because Respondent's failure to include the trial transcript and state court briefing did not violate Claudio's due process rights, and because we have reviewed the trial transcripts and briefs and determined that the Second Circuit did not misapprehend the proofs presented at Claudio's trial, despite not having those materials at hand.
The Supreme Court of the State of New York entered judgment against Claudio on March 13, 1997, convicting him of second degree murder and sentencing him to a term of imprisonment of twenty-five years to life. (Pet'r's Rule 60(b) Mot. Ex. A, at 25, ECF No. 21). We recite the following summary of the facts underlying that conviction from the Second Circuit's opinion affirming this Court's judgment:
On December 14, 1994, the petitioner and the victim, Steven Williams, had an argument over gambling. The next evening, Williams and his friends Hand and Tompy met to go to the store for some drinks. Williams and Tompy started walking towards the store, and Hand stayed back to wait for another friend. While walking, Williams and Tompy encountered the petitioner's friend and codefendant, Curtis Evans. Evans and Williams began to argue, and Evans punched Williams in the face, causing him to fall to the ground, where he lay motionless. Evans then straddled Williams and hit him in the face repeatedly.
The petitioner then arrived at the scene and, while Williams was still on the ground, proceeded to kick him in the face and stomp on his head repeatedly. Evans and Tompy then began to argue, but the petitioner continued to kick Williams in the face. When Evans turned back towards Williams, he reached into Williams' jacket and found his gun. After punching Williams a few more times, Evans ran off, and the petitioner continued to kick Williams. The petitioner then took Williams' bracelet, beeper, and money, and left.
Hand, who had shown up around the time Evans found the gun, went over to Williams and saw that he was lying unconscious on the ground, breathing hard, and bleeding from his face. A police car and ambulance arrived, and a paramedic said that Williams "looked close to if not ready to expire." Williams was comatose when he arrived at the hospital, and he died several weeks later on January 25, 1995.
Claudio, 74 F.Appx. at 122.
The Appellate Division affirmed the judgment of conviction, People v. Claudio, 702 N.Y.S.2d 836 (App. Div. 2000), and the New York Court of Appeals denied leave to appeal on May 4, 2000. People v. Claudio, 95 N.Y.2d 794 (2000). Claudio's subsequent habeas petition to this Court challenged the state courts' determination that sufficient evidence supported his conviction. (Pet. 2, Dkt. No. 1). He directed this challenge at two asserted weak points in the state's proof of second degree murder: a lack of evidence demonstrating his intent to kill, and a lack of evidence establishing causation. (Pet. 5); (Pet'r's Mem. Supp. Pet. 2, Aug. 3, 2001, Dkt No. 2).
Claudio's present motion seeks to revive this challenge and so we describe it in greater detail. (Pet'r's Rule 60(b) Mot. 4-5). In Claudio's view, the medical evidence proved that Williams died from a Diffuse Axonal Injury ("DAI") to the brain. (Pet'r's Mem. Supp. Pet. 11-13, 17). The fatal DAI could only have resulted from a blow to Williams' face, inflicted while Williams was standing. (Id. at 12). Evans, the co-defendant, had struck the only such blow, knocking Williams to the ground and then striking him repeatedly after he collapsed to the pavement. (Id. at 3-4). Accordingly, Claudio argued that he did not causally contribute to Williams' death because, although Williams lived for weeks after the attack, his death was certain the moment Evans first stuck him, regardless of Claudio's subsequent participation in the attack. (Id. at 3, 17); (Sentencing Tr. 8-9); (Pet'r's Rule 60(b) Mot. Ex. B, at 24). At times, Claudio has also argued that the freak nature of Williams' injury, coupled with the spontaneity of Evans' initial punch, both negates the inference that Evans meant to kill Williams and also shows that Claudio had no intent to kill when he struck the already mortally wounded Williams. (Sentencing Tr. 11-14); (App Div. Br. 18-19); (Pet'r's Mem. Supp. Pet. 20-22).
Whether couched in terms of causation or in terms of intent, the theory depends on the same view of the medical evidence relating to the DAI. And, in its initial motion to dismiss the petition, Respondent did not contest that view of the evidence. (Resp't's Mem. Supp. Mot. Dismiss Pet. 6, Feb. 20, 2002, Dkt. No. 9). Rather, Respondent contended that Claudio's petition was untimely under 28 U.S.C. § 2244(d)(1), which is the one-year limitations period set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (Id. at 10). The Court agreed with Respondent, concluding that the state judgment of conviction became final on August 2, 2000, when Claudio's time to seek a writ of certiorari expired. (Mem. and Order 2, Sept. 25, 2002, Dkt. No. 12). Claudio had filed his petition on August 3, 2001, a single day late, and so we denied the petition as untimely. (Id. at 2).
Nevertheless, the Court issued a certificate of appealability on the merits. (J. 1, Sep. 20, 2002, Dkt. No. 13). Respondent, having focused entirely on the timeliness of the petition, filed none of the state trial or appellate court briefs with this Court, and filed no trial transcripts, even though the Court's original Order to Show Cause directed Respondent to file these materials if "available." (Order Show Cause 1, Nov. 19, 2001, Dkt. No. 4). Accordingly, with nothing in the record to draw upon other than Claudio's Memorandum of Law, we felt constrained to give Claudio the benefit of doubt on whether he had "made a substantial showing of the denial of a constitutional right' under 28 U.S.C. § 2253(c)(2)." (Mem. and Order 2). The Court therefore issued the certificate. We also instructed Respondent to file "copies of all available briefs submitted by petitioner and the District Attorney on appeal or in connection with state collateral proceedings" with the Court. (Id. at 3).
On appeal, Respondent broadened its opposition, not only arguing that Claudio's petition was untimely, but also challenging Claudio's view of the medical evidence and causation, while arguing that the severity of the attack by itself sufficiently demonstrated his intent to kill. (Resp't's Appeal Br. 37-45, June 2, 2003). Respondent further pointed out that, even if Claudio's theory of causation were correct, Claudio's conviction could stand on the theory that he acted in concert with Evans. (Id. at 41-42).
On review, both parties also urged the Second Circuit to expand the certificate of appealability and consider the timeliness of Claudio's petition (including the question of whether a habeas petitioner may bring a claim of actual innocence outside the limitations period). Claudio, 74 F.Appx. at 121. The Second Circuit declined, addressing only the merits, and agreeing with Respondent that Claudio's challenge to the sufficiency of the evidence failed. Id. at 122. Specifically, the Second Circuit narrowly held that Claudio's theory of causation was not correct: even assuming that DAI killed Williams, a rational trier-of-fact could have determined that Claudio's kicks and stomps contributed to the DAI, and therefore contributed to Williams' death. Id. at 123. The court also concluded that the trier of fact could "readily infer from the nature of the petitioner's beating of Williams that the petitioner had the requisite intent to commit intentional murder." Id . The court did not reach the theory that the Claudio acted in concert with Evans. Id. at 123 n. 1.
In reaching these conclusions, the Second Circuit drew upon the same limited record as this Court. Id. at 123; (Index R. Appeal 3-5). Respondent had not heeded this Court's instructions to file the state court briefing, explaining in a letter to the Second Circuit that "as the timeliness of the petition can be determined by this Court without reference to the state court transcripts and briefs, there is simply no need for these documents." (Resp't's Letter 1, Nov. 15, 2002, Dkt No. 16). Claudio brought this delinquency to our attention and to the attention of the Second Circuit. (Pet'r's Letter Appl. 1, Nov. 26, 2002, Dkt No. 16). He asked this Court to sanction Respondent; we denied that application. (Id.) Lacking the transcripts and state court briefing, the Second Circuit explained that it drew its understanding of the underlying facts and evidence solely from the briefing. Claudio, 74 F.Appx. at 123 ("We note that, because neither party presented to the district court or to this court a full record of the state court proceedings, we have based our determination of the petitioner's habeas claim on each party's rendition of the record that was not specifically controverted by the other party.")
Approximately nine and a half years later, Claudio, prompted by the Supreme Court's ruling in Cullen v. Pinholster, 131 S.Ct. 1388 (2011) moved this Court to vacate its judgment pursuant to Rule 60(b), arguing that we should reopen the matter because Respondent's failure to provide the full record rendered the habeas proceedings deficient. Respondent has filed no opposition.
The Court begins by briefly addressing the question of whether we have jurisdiction under AEDPA to decide Claudio's motion. That question turns on whether the motion, although captioned as a Rule 60(b) motion, is in actuality a second or successive habeas petition. See generally Gonzales v. Crosby, 545 U.S. 524, 528-536 (2005). Obviously Claudio brings the motion because he wishes to eventually set aside his conviction in state court. However, for the moment, Claudio only asks the Court to set aside the habeas judgment so that we may take a fresh look at the matter with the aid of a complete record, an inquiry he argues is mandatory under Cullen. Should the Court agree, "[t]he grant of [Claudio's] motion would not have the effect of invalidating the state conviction. It would merely reinstate the previously dismissed petition for habeas, opening the way for further proceedings seeking ultimately to vacate the conviction." Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001). Accordingly, even though Claudio's Rule 60(b) motion is "undoubtedly a step on the road to the ultimate objective of invalidating the judgment of conviction, " Id. at 198, it takes the form of a procedural attack directed to "the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial." Id. at 199; See also Graves v. Phillips, 811 F.Supp.2d 601, 603-04 (E.D.N.Y. 2011), aff'd 531 F.Appx. 27 (2d Cir. 2013). Claudio's Rule 60(b) motion is therefore not a second and successive petition, and the Court may decide it.
Next we ask whether the motion, which Claudio filed approximately nine and half years after the Second Circuit affirmed, is timely. Rule 60(c)(1) states that any motion brought under Rule 60(b)(1-3) must be filed within a year, a bar that is "absolute." Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting 12 James Wm. Moore, Moore's Federal Practice § 60.65[a] at 60-200 (3d ed.1997)). In contrast, motions brought under Rule 60(b)(4-6) must be filed within a "reasonable time."
Claudio brings the motion pursuant to Rule 60(b)(4), which authorizes relief from void judgments. Occasionally, however, litigants on both sides of habeas practice have mislabeled Rule 60(b) motions in an attempt to avoid the absolute one-year bar set forth in Rule 60(c)(1). Compare Id. at 114-15 (concluding that § 2254 petitioner's putative Rule 60(b)(6) motion was in fact an untimely Rule 60(b)(1) motion) with Stevens v. Miller, 676 F.3d 62, 68 (2d Cir. 2012) (concluding that the state's Rule 60(b)(6) motion was "nothing more than a late Rule 60(b)(1) motion."). When the district court determines that an untimely Rule 60(b) motion is "masquerading" in this manner, the court should deny the motion. See Id. at 67; Brown v. Combs, 241 F.Appx. 761, 762 (2d Cir. 2007).
Claudio has not mischaracterized his motion. The motion is certainly not a stealthy Rule 60(b)(1) motion based on mistake or neglect, because the State's decision not to file the briefs and transcripts was quite deliberate. Moreover, although one might argue that Claudio's motion fits better under Rule 60(b)(3), insofar as it is based on the State's "misconduct" in deciding not to file those materials, we conclude (for reasons that will become more apparent when we address the merits) that Claudio has properly characterized the motion under Rule 60(b)(4). The Court therefore assesses whether Claudio filed the motion within a "reasonable" time.
Superficially, nine and a half years looks like far too long of a delay, well beyond the fatal three-and-a-half year delay in Rodriguez, 252 F.3d at 201, and approaching the unexplained fifteen year delay in Washington v. Hirsch, 2011 WL 4711879, at *2 (E.D.N.Y. Oct. 5, 2011), aff'd 472 F.Appx. 55 (2d Cir. 2012), a Heck-barred § 1983 case. However, Claudio's argument rests not only on Respondent's failure to comply with this Court's directives and the applicable rules of court, but on what he asserts is the rule of decision laid down in Cullen. Assuming that Claudio is correct, and that Cullen did indeed impose an obligation upon the courts to consider the entire state court record when ruling on a § 2254 petition (again, an issue we discuss in greater detail infra), Claudio's entitlement to relief under Cullen (if any) vested only when the Supreme Court decided that case on April 4, 2011. His Rule 60(b) motion followed that decision by just under two years, which makes the overall reasonableness of Claudio's delay a closer question. But the Court concludes that this shorter delay also exceeds the boundaries of reasonableness under Rule 60(c)(1). Cf. Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (twenty-six month delay in filing Rule 60(b) motion after entry of judgment is unreasonable); United States v. Cleaver, 319 F.Appx. 728, 731 n. 2 (10th Cir. 2009) (two year delay is unreasonable for Rule 60(b) motion brought by § 2255 petitioner challenging district court's dismissal of petition without permitting him to reply). We therefore deny the motion as untimely.
In the alternative, we next consider whether the judgment is "void" within the meaning of Rule 60(b)(4) because the State did not submit the briefing and trial transcript. "A judgment is void under Rule 60(b)(4) of the Federal Rules of Civil Procedure... if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law." City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011) (alteration in original) (internal quotation marks omitted) (quoting Grace v. Bank Leumi Trust Co. of N.Y., 443 F.3d 180, 193 (2d Cir. 2006)). Accordingly, in habeas proceedings, Rule 60(b)(4) relief is not appropriate except in the "rare instance'" in which a due process violation infects the habeas proceedings. Graves, 531 F.Appx. at 29 (quoting United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010)). Our review of the case law in this Circuit confirms that such instances are not only rare, but virtually non-existent. See, e.g., Fuentes v. LaValley, 2014 WL726696, at *3-4 (E.D.N.Y. Feb. 24, 2014) (rejecting claim that judgment denying petition violated due process because of racial and gender bias of presiding judge); Lorenzana v. United States, 2013 WL 4400526, at *3 (S.D.N.Y. Aug. 15, 2013) (rejecting claim based on lack of evidentiary hearing on ineffective assistance of counsel claim).
Still, Claudio's motion is cognizable under Rule 60(b)(4) because it implicates "[t]he fundamental requisite of due process of law... the opportunity to be heard[.]'" Ford v. Wainwright, 477 U.S. 399, 413 (1986) (first alteration in original) (quoting Grannis v. Ordean, 234 U.S. 385, 394 (1914)). Yet, even though Respondent engaged in technical violations of the rules, Claudio's claim of a due process violation falls short. True, in our original Order to Show Cause, we directed Respondent to file both the transcripts and the state court briefing, if available. And we reiterated our order to file the briefing (though not the transcript) in the Memorandum and Order denying the petition. Moreover, Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts stated at the time (that is, prior to its most recent amendment in 2004) that "[t]he answer shall indicate what transcripts (of pretrial, trial, sentencing, and post-conviction proceedings) are available, when they can be furnished, and also what proceedings have been recorded and not transcribed." Rule 5 also stated that the respondent "shall" file "a copy of the petitioner's brief on appeal [in state court] and of the opinion of the appellate court." Respondent never fully complied with our orders or with Rule 5, even though its citation to the trial transcript throughout its subsequent brief on appeal indicates that portions of the transcript were available (indeed, the most important portions, those transcribing the testimony of the key eyewitness and the medical examiners). (Resp't's Appeal Br. 6-10, 44).
Even so, we cannot view Respondent's carelessness as so extreme that it violates due process. Crucially, at the time the petition was under review, Rule 5 did not absolutely require the respondent to file the trial transcript. Moreover, although Rule 5 did require the respondent to file the state court briefing with its answer, the Rules of Civil Procedure also authorize respondent to file instead a motion to dismiss on procedural grounds, including failure to file within AEDPA's statute of limitations. See, e.g., Purdy v. Bennett, 214 F.Supp.2d 348, 353 (S.D.N.Y. 2002) (district court may permit respondent to file motion to dismiss pursuant to Rule 12(b)(6)). Ultimately, then, despite our two orders and the requirements of Rule 5, the worst that can be said is that Respondent should have first sought leave of court before filing its motion to dismiss in lieu of an answer conforming with the rules. And that failure did not go unnoticed at the time. On the contrary, both this Court and (impliedly) the Second Circuit determined that the petition could move forward on the merits even after Claudio notified both courts of Respondent's continued dereliction via letter. Finally, we note that Claudio's counsel also had access to the transcript. Like Respondent, counsel cited the transcript throughout his original briefing. (Pet'r's Mem. Supp. Pet. 5-15). In these circumstances, we cannot conclude that Claudio was deprived of the opportunity to be heard.
Claudio bolsters his due process argument by citation to Cullen. According to Claudio, Cullen held that "the state court record was that considered by the state courts for the habeas court to adjudicate the petition." (Pet'r's Mem. Supp. Rule 60(b) Mot. 3). But in Cullen, 131 S.Ct. at 1398, the Court, in construing § 2254(d)(1), announced a rule limiting the maximum scope of the record in a state habeas petition under AEDPA, not a rule newly defining the required minimum scope of the record. As the Court put it: "[t]he State argues that review is limited to the record that was before the state court that adjudicated the claim on the merits.... We agree with the State.... We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id . Put simply, Cullen established a ceiling, not a floor. If it were otherwise, Rule 5 would now be in derogation of AEDPA, yet no court has so held, nor has that rule been further amended.The judgment is not void under Rule 60(b)(4) and so we deny the motion.
To summarize our holdings thus far, the Court has concluded that the motion is untimely, and also determined that the Respondent's failure to file the transcripts and briefing with the Second Circuit did not violate due process. We now consider one last, important possibility: whether Claudio was actually prejudiced by the omission of these materials. Conceivably, in reviewing a district court's denial of a habeas petition, a court of appeals could be misled by exclusive reliance on the briefing of the parties, especially where, as here, the petitioner directed almost all of his energy on appeal towards a procedural issue, not the merits. Accordingly, we ask whether the Second Circuit was actually misled by Respondent's briefing. If so, and if the Second Circuit likely got the case wrong as a result, then Respondent's failure to file the state court materials, though not in derogation of due process as a general matter, might well have violated due process as applied to the facts of this case.
More specifically, in this last section, we will assume without deciding that, if a § 2254 respondent fails to file the state court briefing and trial transcript after ordered to do so, and, if a court of appeals then affirms denial of the petition based on an erroneous view of the evidence that the full record would have revealed, such that the court of appeals likely would have reached a different conclusion with the benefit of a full record, then the ...