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Toliver v. Artus

United States District Court, W.D. New York

August 25, 2014

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

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

On January 3, 2013, this Court issued a Decision and Order [#18] denied the pro se application for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 sought by Samuel R. Toliver ("Petitioner"). Judgment [Dkt #19] was entered on January 4, 2013, and Petitioner filed a notice of appeal [Dkt #20] with the Second Circuit. On July 24, 2013, a Second Circuit mandate [Dkt #25] was filed in this Court denying Petitioner's request for a certificate of appealability and dismissing his appeal. On or about January 30, 2014, Petitioner filed a motion to vacate the judgment [Dkt #28], which this Court denied [Dkt #29]. Petitioner filed a notice of appeal [Dkt #30] as to that motion. On August 6, 2014, Petitioner filed a Motion to Vacate Judgment - Lack of Jurisdiction of Person (F.R.C.P. Rule 60(b)(4)) [Dkt #33] and a Motion for Declaratory Judgment [Dkt #34].

For the reasons discussed below, both motions are dismissed.

II. Motion to Vacate

Rule 60(b) of the Federal Rules of Civil Procedure, properly applied, "strikes a balance between serving the ends of justice and preserving the finality of judgments." Nemaizer v. Baker , 793 F.3d 58, 61 (2d Cir. 1986) (citations omitted). The moving party bears the burden of proof and must convince the reviewing court that "exceptional circumstances" exist for vacating the judgment. United States v. International Bhd. of Teamsters , 247 F.3d 370, 391 (2d Cir. 2001). All Rule 60(b) motions must "be made within a reasonable time, " FED. R. CIV. P. 60(b), and motions under Rule 60(b)(1), (2) and (3) must be made within one year after the judgment, id., 60(c). The Second Circuit also requires that the evidence in support of the motion be "highly convincing, " Koticky v. United States Fidelity & Guar. Co. , 817 F.2d 6, 9 (2d Cir. 1987) (quotation omitted); that the movant show good cause for the failure to act sooner, id. (citations omitted); and that no undue hardship be imposed on the opposing parties, id. (citation omitted).

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 proceeding, not to the integrity of the criminal trial." Harris v. United States , 367 F.3d 74, 80 (2d Cir. 2004).

Pursuant to Rule 60(b), "[o]n motion and just terms, a court may relieve a party or its legal representative from a final judgment, order, or proceeding" for any of the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

FED. R. CIV. P. 60(b). Petitioner specifies subsection (4) as the basis for his motion. "Pursuant to that rule, a movant may attack a judgment for lack of jurisdiction over his person at any time, since a judgment rendered without jurisdiction over the person (i.e., because of insufficient service of process) is void." Williams v. United States, Nos. 401CV089 , 499CR241-01, 2009 WL 411511, at *1 (S.D. Ga. Feb. ...


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