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Sanders v. Walsh

United States District Court, E.D. New York

April 16, 2014

TERRY SANDERS, Petitioner,
JAMES J. WALSH, Respondent.



Before the court is Petitioner Terry Sanders' ("Sanders" or "Petitioner") motion for relief pursuant to Federal Rule of Civil Procedure 60(b) from this court's December 29, 2004, Memorandum and Order denying Sanders' petition for writ of habeas corpus as untimely. (Mot. for Relief (Dkt. 8).) For the reasons set forth below, Petitioner's motion is DENIED.


On February 4, 1994, after a jury trial in state court, Petitioner was found guilty of Murder in the Second Degree and Burglary in the Second Degree in violation of N.Y. Penal Law §§ 125.25[3] and 140.25[a][1]. (Petition (Dkt. 1) at 1.) He was thereafter sentenced to concurrent terms of imprisonment of twenty-five years to life on the murder count and five to fifteen years on the burglary count. Id . Sanders' conviction was affirmed on appeal by the Appellate Division of the Second Department on February 16, 1999. See People v. Sanders, 258 A.D.2d 601 (2d Dep't 1999). On June 8, 1999, the Court of Appeals denied Sanders' request for leave to appeal. See People v. Sanders, 93 N.Y.2d 978 (1999).

More than four years later, on September 6, 2004, Sanders filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 before this court. Acknowledging that he had not filed his petition within the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2244(d), Petitioner nonetheless argued that the extraordinary circumstances present in his case warranted equitable tolling of the limitations period. (Petition at 5-12.) Specifically, Sanders alleged that his attorney-who was retained after he had exhausted his state court appeals and shortly before expiration of the limitations period-failed to advise him of the upcoming deadline for filing a habeas petition and then withheld Sanders' legal file for nearly four years, making it impossible for him to file a petition on his own. (Id. at 10.) Relying primarily on the Second Circuit's decision in Baldayague v. United States, 338 F.3d 145 (2d Cir. 2003), Petitioner argued that his attorney's failure to timely file a petition on his behalf justified the application of equitable tolling.

By Memorandum and Order dated December 29, 2004, this court denied the Petition as untimely. (Mem. & Order ("Denial Order") (Dkt. 4).) The court noted that Petitioner's counsel was retained only slightly more than one month before the one-year limitations period expired and that the retainer agreement did not direct the attorney to prepare a habeas petition. While the court acknowledged that Sanders' counsel "could have been more diligent in researching and evaluating the options available to his client at the time he was retained, " it nonetheless found that his conduct was not sufficiently egregious to warrant tolling AEDPA's limitations period. (Id. at 3-6.) See Baldayague, 338 F.3d at 152 ("Attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period."). As the court previously stated, "Sanders' attorney had little time to act on an issue which was not part of his retainer agreement" and thus his failure to file a petition on Sanders' behalf "does not constitute 'extraordinary' circumstances that merit equitable tolling." (Denial Order at 5.) Further, the court found that Sanders had failed to demonstrate that he displayed reasonable diligence during the intervening four years between the expiration of the limitations period and the filing of the Petition, as required for equitable tolling. (Id. at 3, 5-6 (citing Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) ("To equitably toll the one-year limitations period, a petitioner "must show that extraordinary circumstances prevented him from filing his petition on time, " and he "must have acted with reasonable diligence throughout the period he seeks to toll." (citations omitted))).) Petitioner's appeal from the court's denial of the Petition was dismissed by the Second Circuit on July 14, 2005. (Dkt. 7.)

On November 22, 2013, more than eight years after his appeal was dismissed, Sanders filed the instant motion for relief from the court's prior order under Federal Rule of Civil Procedure 60(b)(6). (Aff. in Supp. ("Pet'r Aff.") (Dkt. 9.) Petitioner now argues that because he was not provided with a copy of the trial transcripts in his case before the Petition was denied, "the habeas proceedings lacked integrity" and denied him his "right to proceed pro-se" and to "be heard in a due process fashion." (Id. at 1-2.) Specifically, Petitioner faults the court for not issuing an order that he be provided with the referenced transcripts at no cost as required by 28 U.S.C. §§ 2249 and 2250. (Id.) "Due to the literal reading of the statute, " Petitioner argues, he is "entitled to relief." (Id.


Federal Rule of Civil Procedure 60 "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). Specifically, 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 the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial...;
(3) fraud[, ]..., misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or ...

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