United States District Court, S.D. New York
Lawrence Savoca, Petitioner, Pro se, Lewisburg, PA.
Salvatore Savoca, Consolidated Petitioner, Pro se,, Lexington, KY.
For USA, Respondent: Elliott Bruce Jacobson, LEAD ATTORNEY, U.S. Attorney's Office, White Plains, White Plains, NY.
OPINION AND ORDER
Lisa Margaret Smith, United States Magistrate Judge.
Following his federal conviction in the underlying criminal proceeding, 03cr841 (SCR), Lawrence Savoca moves, pursuant to Fed.R.Civ.P. 60, to vacate the judgment of conviction and sentence. Docket Entry #70, Motion. For the reasons set forth below, the motion is denied.
The facts of this case are recounted in the Court's August 8, 2013, Decision and Order, and the parties' familiarity with those facts is assumed. In short, brothers Lawrence and Salvatore Savoca were involved in the June 21, 2001, attempted robbery and shooting of Michael Geary. Salvatore acted as the stick-up man and the shooter, while Lawrence served as the getaway driver. At the conclusion of a jury trial, Lawrence was convicted of conspiracy to commit robbery (18 U.S.C. § 1951(a)); attempted robbery (18 U.S.C. § § 1951(a)(2) & 2); using, carrying, and discharging a firearm during the commission of a crime of violence (18 U.S.C. § 924(c)(1)(A)(iii)); and the Armed Career Criminal Act offense of possession of a firearm after having previously been convicted of three violent felony offenses (18 U.S.C. § § 922(g)(1), 924(e)). Salvatore pleaded guilty to a number of counts.
Both, proceeding pro se, thereafter moved separately to set aside, vacate, or correct a sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. Lawrence challenged his conviction and sentence, whereas Salvatore challenged only his sentence. The movants consented to my exercise of jurisdiction over this matter pursuant to 28 U.S.C. § 636(c). Docket Entry #16, Motion. With the movants' consent, the Court consolidated the two motions. Docket Entry #22, March 15, 2011, Order.
By Decision and Order dated August 8, 2013, the Court denied movants' § 2255 motions. Docket Entry #58. Thereafter, the Clerk's Office entered Judgments on the Order denying the movants' § 2255 motions. Notices of appeal were filed from the Judgments by the movants. Docket Entry #61, Notice of Appeal.
Lawrence now moves, pursuant to Fed.R.Civ.P. 60(b)(4), (b)(6), and (d) to vacate the judgment of conviction. Docket Entry #70, Motion at 1. The Government has filed no papers in opposition to the motion.
Rule 60(b) of the Federal Rules of Civil Procedure provides:
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.
Rule 60(b) " 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." Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004) (internal citations, brackets, and quotation marks omitted). " Furthermore, it is properly invoked where there are extraordinary circumstances, or where the judgment may work an extreme and undue hardship." Id. at 55-56 (internal quotation marks and citation omitted); United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977) (" a ...