United States District Court, E.D. New York
OPINION AND ORDER
SANDRA J. FEUERSTEIN, District Judge.
By Opinion and Order dated September 19, 2012 ("Order"), this Court denied Michael Tineo's ("petitioner") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. DE 23. On September 16, 2013, petitioner filed a motion pursuant to Federal Rule of Civil Procedure ("FRCP") 60(b) to vacate that portion of the Order which deemed his ineffective assistance of appellate counsel claim abandoned on the ground it was not raised in his petition. For the following reasons, petitioner's motion is DENIED.
On January 9, 2006, a judgment of conviction was entered against petitioner in the Supreme Court of the State of New York, Suffolk County, based upon his plea of guilty to murder in the second degree, criminal possession of a controlled substance in the third and fourth degrees, criminal possession of a weapon in the second and third degrees, reckless endangerment in the first degree, criminal mischief in the fourth degree and resisting arrest. On July 24, 2009, petitioner filed a petition in this Court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. DE 1. On August 19, 2009, petitioner moved to amend his petition to include a claim for ineffective assistance of appellate counsel (DE 5), which motion was granted and the claim was deemed incorporated into the petition. DE 6. The Order, however, inadvertently held that petitioner's ineffective assistance of appellate counsel claim was deemed abandoned because the claim was not in the original petition. DE 23 p. 18 n.3.
Petitioner now moves to vacate the judgment pursuant to FRCP 60(b). He claims that the Court's error foreclosed review of a claim that was properly exhausted and raised in his petition. DE 30 p. 3. Petitioner also claims that the error resulted in a finding that his totality of the circumstances claim was procedurally defaulted. !d.
Federal Rule of Civil Procedure 60(b)
Rule 60(b) provides that:
On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for 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.
A grant of relief under Rule 60(b), entrusted to the sound discretion of the trial court, depends upon the parties and the circumstances of each case. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). "A Rule 60(b) motion should be broadly construed to do substantial justice, yet final judgments should not be lightly reopened." PG 1044 Madison Assocs., L.L.C. v. Sirene One, L.L.C., 229 F.R.D.450, 452 (S.D.N.Y. 2005). "Rule 60(b) provides extraordinary relief, and a motion thereunder may only be granted upon a showing of exceptional circumstances." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004). The party seeking relief under Rule 60(b) bears the burden of proof. PG 1044 Madison Assocs., L.L.C., 229 F.R.D. at 452. In the Second Circuit, a Rule 60(b) motion "cannot serve as an attempt to relitigate the merits." Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir. 1989) (citing Mastini v. Amer. Tel. & Telegraph Co., 369 F.2d 378, 379 (2d Cir. 1966)).
Rule 60(b) applies to habeas corpus cases and may be used to reopen a habeas proceeding. Williams v. Donnelly, No. 99 Civ. 6051, 2011 WL 815689, at *2 (W.D.N.Y. Mar. 2, 2011) (citing Gonzalez v. Crosby, 545 U.S. 524, 534 (2005)). However, "relief under Rule 60(b) is available for a previous habeas proceeding only when the Ru1e 60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004). See Rodriguez v. Mitchell, 252 F.3d 191, 198 (2d Cir. 2001) ("We now rule that a motion under Rule 60(b) to vacate a judgment denying habeas is not a second or successive habeas petition and should therefore be treated as any other motion under Rule 60(b).").
Conversely, "a Rule 60(b) motion that attacks the underlying conviction presents a district court with two procedural options: (i) the court may treat the Rule 60(b) motion as a second or successive' habeas petition, in which case it should be transferred to [the Court of Appeals] for possible certification, or (ii) the court may simply deny the portion of the motion attacking the underlying conviction as beyond the scope of Rule 60(b).'" Harris, 367 F.3d at 82 (quoting Giffen v. United States, 311 F.3d 529, 534 (2d Cir. 2002)).
Because petitioner attacks the integrity of the underlying habeas proceeding, the Court shall decide this ...