United States District Court, E.D. New York
ABDUL RAHIM HOWARD, Pro Se, Metropolitan Detention Center, Brooklyn, NY, For the Petitioner.
JOHN DAVID BURETTA, ESQ., Assistant District Attorney, Brooklyn, NY, For the Respondent.
MEMORANDUM AND ORDER
FREDERIC BLOCK, Senior District Judge.
On October 21, 2011, Petitioner Abdul Rahim Howard ("Howard") filed a second motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. The Court denied the petition on August 16, 2012 and denied a subsequent motion for reconsideration on November 25, 2013. Howard now moves to vacate the Court's August 12, 2012 and November 25, 2013 orders pursuant to FED. R. CIV. P. 60(b)(4) and 60(b)(6). Howard also moves the Court to recuse itself pursuant to 28 U.S.C. § 455(a). For the reasons that follow, his motions are denied.
A jury convicted Howard of the following offenses: (1) conspiracy to possess and distribute at least 50 grams of cocaine base and one kilogram of heroin; (2) use of drug related premises to distribute and store cocaine base and heroin; and (3) distribution and possession of cocaine base and heroin within 1, 000 feet of a playground. He was sentenced to 240 months' imprisonment. His conviction was affirmed on appeal. See United States v. Ramos, 314 F.Appx. 344 (2d Cir. 2008), cert. denied, 130 S.Ct. 1045 (2009).
Howard first moved for habeas relief on June 11, 2010. The Court denied that petition and a subsequent motion for reconsideration. On October 11, 2011, Howard filed another habeas petition ("2011 petition"). The Court transferred Howard's 2011 petition to the Second Circuit as a successive petition. The Second Circuit found the 2011 petition was not successive and remanded it to the Court for "whatever further action the district court finds appropriate." Dkt. No. 3 (Order of USCA) at 2.
On August 16, 2012, the Court denied Howard's 2011 petition. Howard filed numerous reconsideration motions which the Court denied in orders dated December 13, 2012, November 25, 2013 and December 13, 2013.
Howard argues that the Court's August 12, 2012 and November 25, 2013 orders are void under Rule 60(b)(4) because he was denied due process. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 138 (2d Cir. 2011) ("A judgment is void under Rule 60(b)(4)... if the court that rendered it... acted in a manner inconsistent with due process of law.") (internal citations and quotations omitted).
Howard contends that he was denied due process when the Court did not hold an evidentiary hearing for three ineffective assistance of counsel claims. This argument is unavailing. A petitioner must state a "plausible claim" to obtain an evidentiary hearing on an ineffective assistance of counsel claim. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009). As explained in the Court's August 12, 2012 and November 25, 2013 orders, the record conclusively showed that these claims were not plausible. Therefore, an evidentiary hearing was unnecessary.
Howard also maintains that he was denied due process when the Court rejected his 2011 petition without requiring a response from the government and an affidavit from his attorney. The Court was not required to direct a government response to Howard's 2011 petition. See Nelson v. United States, No. 01-CV-3439, 2001 WL 799760, at *1 (E.D.N.Y. July 16, 2001) ("Because the arguments raised in the petition were plainly... without merit... [the Court] was not required to... direct the government to respond."). The Court was also not required to solicit an affidavit from Howard's attorney. See Abad v. United States, No. 09-CV-8985, 2014 WL 521541, at *1 (S.D.N.Y. Feb. 6, 2014) ("Petitioner was not denied due process when the Court denied his habeas petition without... requiring the submission of attorney affidavits during the habeas proceeding."); see also Lorenzana v. United States, No. 11-CV-6153, 2013 WL 4400526, at *3 (S.D.N.Y. Aug. 15, 2013) ("[T]he Court is not required to solicit sworn statements in connection with its evaluation of a habeas motion."). As such, Howard has not established grounds for relief under Rule 60(b)(4).
Howard's motion also fails under Rule 60(b)(6). "Relief under Rule 60(b)(6) is appropriate only in cases presenting extraordinary circumstances." Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (internal citations and quotations omitted). "Such circumstances will rarely occur in the habeas context." Gonzales v. Crosby, 545 U.S. 524, 535 ...