United States District Court, W.D. New York
ERIC X. MARTINEZ, Petitioner,
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA United States District Judge.
pro se Eric X. Martinez (“Petitioner”)
filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. On May 9, 2016, the Court issued a
Decision and Order (Dkt #28) denying the petition and
declining to issue a certificate of appealability. Judgment
in Respondent's favor was entered on May 10, 2016 (Dkt
#30). Petitioner sent a letter to the Court dated January 21,
2017, which the Court construed as a Motion for Leave to
appeal and/or Motion for Reconsideration (Dkt #33)
(“the Reconsideration Motion”) of the Decision
and Order denying his habeas petition. On February 13, 2017,
Respondent filed a Memorandum of Law in Opposition (Dkt #34)
to Petitioner's Motion for Reconsideration. Petitioner
sent a letter dated February 5, 2017, to the Court requesting
an attorney and, should the Court appoint an attorney, an
extension of time to file a reply to Respondent's
opposition brief. The Court has construed this as a Motion
for Appointment of Counsel and a Conditional Request for
Extension of Time to File Reply (Dkt #36). For the reasons
discussed below, all of Petitioner's motions are denied
for reconsideration are governed by Rule 59(e) of the Federal
Rules of Civil Procedure (“Rule 59(e)”) and are
frequently brought in the habeas context. See,
e.g., Graziano v. Lape, No.
904CV0084LEKGJD, 2005 WL 1176567, at *1 (N.D.N.Y. May 4,
2005) (Section 2254 petitioner filed motion for
reconsideration based on new evidence) (citation omitted).
However, the most recent version of Rule 59(e),
which was in effect at the time of Petitioner's judgment,
contains a 28-day time-limit on filing motions for
reconsideration. The deadline under Rule 59(e) is
“inflexible[.]” Crenshaw v. Superintendent of
Five Points Corr. Fac., 595 F.Supp.2d 224, 227 (W.D.N.Y.
2009). Therefore, Petitioner's motion cannot be brought
under the authority of Rule 59(e) because it is untimely
under that rule. See id.
similar circumstances, courts have treated untimely Rule
59(e) motions as motions to vacate the judgment pursuant to
Rule 60(b) of the Federal Rules of Civil Procedure
(“Rule 60(b)”). See, e.g.,
DiGirolamo v. United States, 279 F. App'x 37, 39
(2d Cir. 2008) (unpublished opn.) (Section 2255
petitioner's filing “cannot be construed as a Rule
59(e) motion because it was not filed within ten days of the
district court's original opinion, but should be treated
rather as a motion for relief from a judgment or order under
Rule 60(b)(6).”) (citing Feldberg v. Quechee Lakes
Corp., 463 F.3d 195, 198 (2d Cir. 2006) (construing the
defective Rule 59(e) motion as a Rule 60(b) motion)).
60(b) provides a party with the opportunity to seek relief
from a prior judgment 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 . . .,
misrepresentation, or other misconduct by an opposing party;
(4) the judgment is void; (5) the judgment has been
satisfied, released, or discharged . . .; (6) any other
reason that justifies relief.
Fed. R. Civ. P. 60(b)(1)-(6). “A motion under Rule
60(b) must be made within a reasonable time-and for reasons
(1), (2), and (3) no more than a year after the entry of the
judgment or order or the date of the proceeding.”
Fed.R.Civ.P. 60(c)(1). In addition to filing in a reasonably
timely manner, the moving party must demonstrate
“extraordinary circumstances” or “extreme
hardship.” PRC Harris, Inc. v. Boeing Co., 700
F.2d 894, 897 (2d Cir. 1983).
has not attempted to demonstrate “extraordinary
circumstances” or “extreme hardship.”
Indeed, he has not asserted any facts or legal arguments to
justify vacating the judgment against him, but instead simply
asks if he can “bring [his case] again to [this] court
for new federal arguments as a fact and the grounds of a
federal case arguments in a writ habeas corpus motion.”
Petitioner has not met the strict requirements for granting
relief under Rule 60(b), and accordingly his motion is
denied. See, e.g., Rodriguez v.
Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (Section 2254
petitioner filed Rule 60(b) motion three and one-half years
from the date judgment was entered; court found that was not
a “reasonable time” and, even if motion were
timely filed, “it would still fail, because
‘[r]elief under Rule 60(b)(6) is appropriate only in
cases presenting extraordinary circumstances, ' and [the
petitioner] has failed to allege any such
circumstances”) (quotation omitted).
Late Leave to Appeal
Court has construed Petitioner's first post-judgment
motion as also including a request for permission to file a
late notice of appeal, as Petitioner states, “I really
would like to appeal my case to a higher court can you please
allow me to appealed . . . .”
strict timelines circumscribe the district court's
ability to grant extensions of time to file notices of
appeal. See Endicott Johnson Corp. v. Liberty Mut. Ins.
Co.,116 F.3d 53, 56 (2d Cir. 1997). In a civil case
such as this one, “the notice of appeal . . . must be
filed with the district clerk within 30 days after
entry of the judgment or order appealed from.” Fed. R.
App. P. 4(a)(1)(A). The requirements of Federal Rule of
Appellate Procedure (“F.R.A.P.”) 4(a) are