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Cole v. Chappius

United States District Court, W.D. New York

May 6, 2015

AHMIR COLE, Petitioner,
PAUL CHAPPIUS, Superintendent of Elmira Correctional Facility, Respondent.


HUGH B. SCOTT, Magistrate Judge.

Before the Court is petitioner's motion for relief under Federal Rule of Civil Procedure 60(b)(3) (Docket No. 49), following denial of habeas corpus relief (Docket No. 42; see Docket No. 43, Judgment). Reconsideration and certificate of appealability were denied (Docket No. 45; cf. Docket No. 44), and mandate later was issued by the United States Court of Appeals for the Second Circuit dismissing the appeal (Docket No. 48). Familiarity with these proceedings, and the Order of April 7, 2014 (Docket No. 42), is presumed. The parties consented to proceed before the undersigned as Magistrate Judge on March 12, 2012 (Docket No. 12).


This is a habeas Petition, with petitioner proceeding pro se as an inmate. He was convicted of nineteen counts in two severed trials for various offenses. Pertinent to this motion (and leading to his current life sentence, see Docket No. 42, Order at 2-3, 5), petitioner challenges the sufficiency of the evidence (during his first trial) for his first degree murder conviction for the April 14, 2006, killing of George Pitliangus (see Docket No. 49, Pet'r Motion, Ex. B, Tr. of Mar. 6, 2007, at 1153 [hereinafter "Tr."]; Docket No. 1, Pet., at 8; Docket No. 34, Am. Pet., at 81-83; Docket No. 42, Order at 2). One element for conviction of violation of New York Penal Law § 125.27(1)(a)(vii) for murder in the first degree is that the person is "more than eighteen years old at the time of the commission of the crime, " N.Y. Penal L. § 125.27(1)(b) (see also Docket No. 42, Order at 12). For this motion, the element at issue is petitioner's age; he contends that there was insufficient proof for this element.

Respondent initially argued that petitioner made only a general motion for a trial order of dismissal (Docket No. 11, Resp't Memo. at 10, 11; Docket No. 38, Resp't Supp'al Memo. at 12-13; Tr. at 1032), without expressly arguing the insufficiency of proof of petitioner's age. Respondent asserted that the Appellate Division's holding that this claim was not preserved for its review provided a state procedural bar to habeas review (Docket No. 11, Resp't Memo. at 10-11).

On April 7, 2014, this Court entered an Order dismissing the habeas Petition, concluding (among other reasons) that petitioner's sufficiency of evidence claims were procedurally barred because he failed to preserve the issue for initial appellate review (Docket No. 42, Order at 12-13). This Court acknowledged, but did not adopt, respondent's alternative arguments that sufficient evidence of petitioner's age was presented to the jury (cf. id. at 12). Judgment dismissing this habeas Petition was entered on April 8, 2014 (Docket No. 43).

Petitioner dated this present motion on March 31, 2015, with proof of service upon respondent's counsel that day (Docket No. 49). Here, petitioner contends that respondent perpetrated a fraud or misrepresentation upon this Court as to whether petitioner asserted the absence of evidence for the age element for the murder in the first degree count (id.). Petitioner now presents a portion of the argument following the jury charge, wherein defense counsel argued for dismissal of the murder count for insufficient evidence of petitioner's age (Docket No. 49, Pet'r Motion, Ex. B). He also contends that his defense counsel made a timely motion for an Order of dismissal based upon the absence of proof of petitioner's age (id. ¶ 15).

Upon review of this motion, rather than require respondent to brief this motion, this Court addresses the motion now.


I. Applicable Standards, Rule 60(b)

Federal Rule of Civil Procedure 60(b) provides grounds from relief from a final judgment for (3) fraud, misrepresentation, or misconduct, Fed.R.Civ.P. 60(b)(3). This motion must be made "within a reasonable time" and for reasons under 60(b)(3) "no more than one year after entry of the judgment or order or the date of the proceeding, " Fed.R.Civ.P. 60(c)(1).

A motion for relief under Rule 60(b) is "generally granted only upon the showing of exceptional circumstances, " Mendell v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990), aff'd, 501 U.S. 115 (1991); Salamon v. Our Lady of Victory Hosp., 867 F.Supp.2d 344, 360 (W.D.N.Y. 2012) (Skretny, Ch. J.) (denying reconsideration); Tafari v. Stein, No. 01CV821, 2009 U.S. Dist. LEXIS 39453, at *5 (W.D.N.Y. May 8, 2009) (Scott, Mag. J.). As noted by the United States Court of Appeals for the Second Circuit, "the standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court, " Shrader v. CSX Transp., 70 F.3d 255, 257 (2d Cir. 155). As this Court noted "the decision whether to grant or deny a motion to reconsider lies in this Court's discretion.... Motions for reconsideration are not to be used as a means to reargue matters already disposed of by prior rulings or to put forward additional arguments that could have been raised before the decision, " or "to give the unhappy litigant one additional chance to sway the judge, " 1199 SEIU Pension Fund v. Eastern Niagara Hosp., No. 13CV323, 2013 U.S. Dist. LEXIS 144047, at *2-3 (W.D.N.Y. Oct. 4, 2013) (McCarthy, Mag. J.) (quoting United States v. Kasper, No. 10CR318, 2012 U.S. Dist. LEXIS 90949, at *2-3 (W.D.N.Y. June 29, 2012) (Skretny, Ch. J.) (citations omitted)); see McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983); Salamon, supra, 867 F.Supp.2d at 360.

II. Application

First, petitioner's motion is timely under Rule 60(c)(1). As a motion for reconsideration under Rule 60(b)(3), petitioner needed to file the motion within one year of the Judgment (Docket No. 43), or by April 8, 2014. Petitioner dated the motion March 27, 2015, and swore an affidavit of service upon respondent on March 31, 2015 (by placing the motion in the mail receptacle in the Elmira Correctional Facility law library), but it was filed by the Court Clerk on April 10, 2015 (Docket No. 49). Under the "mailbox rule, " a pro se prisoner litigant's papers are deemed to have been filed when they are placed in the hands of prison officials ...

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