United States District Court, E.D. New York
Petitioner Eugene Bush Joel Mark Stein Law Offices of Joel M.
Respondent Leonard Portuondo Superintendent Morgan James
Dennehy Kings County District Attorney's Office
ORDER DENYING MOTION
B. Weinstein Senior United States District Judge.
court cannot adjudicate plaintiffs complaint of an
unconstitutionally conducted state trial unless the Court of
Appeals for the Second Circuit grants petitioner permission
to bring a second petition for a writ of habeas corpus. I
respectfully suggest that such permission be granted by the
Court of Appeals for the Second Circuit.
chief witness for the prosecution did not inform the jury
that he had made a relevant deal with an upstate district
attorney that might have affected his testimony. This issue
has never been the basis for an adjudicated habeas corpus
petition in federal court.
moves under Rule 60(b)(6) of the Federal Rules of Civil
Procedure to set aside this court's denial of his first
petition for a writ of habeas corpus. See 28 United
States Code §2254; Docket ("Doc") 32,
01/09/17. He was convicted in a New York State court of
murder in the second degree committed on April 1, 1995, and
possession of the gun with which the murder was committed.
original petition in federal court for a writ of habeas
corpus was dismissed by this court after a hearing; no
certificate of appealability was granted. See Doc
11, 11/13/2003; 28 U.S.C. §2254.
appeal was dismissed. See Doc 15, 06/25/2004.
Petitioner then moved in the Court of Appeals for the Second
Circuit for permission to file a successive petition.
See Doc. 19, 01/24/2007. The motion was denied.
Id An informal letter application to revisit the
case was denied by this court. See Doc 22,
motion in the Court of Appeals for the Second Circuit for
permission to bring a second petition (on grounds different
from those relied on now) was denied. See Doc 24,
and his counsel were fully heard on the present motion under
Rule 60(b)(6) to vacate the November 29, 2003 dismissal of
his first petition. See Minute entry Doc 35,
02/28/2017; transcript hearing 02/28/2017 ("TR"),
movant's ground for his present motion is based on a
failure of the prosecution to inform defense counsel at the
trial that the key witness had a cooperation agreement. The
agreement was made with an upstate district attorney, and
apparently was not known by the prosecuting Kings County
attorney in the instant case. See TR pp. 6, 10,
12-14, 19, 24, 33; letter dated March 17, 2014 to movant from
State of New York Grievance Committee for the Ninth Judicial
District. This was a different ground from those pressed in
the original petition - - voir dire error, failure to
suppress petitioner's statement to police and limitation
of defense cross-examination. See TR. p. 28.
motion to vacate under Rule 60 is denied. As explained by the
court orally at the hearing:
1. The motion is untimely. It comes some ten years after the
Court of Appeals for the Second Circuit denied a motion to
file a successive petition, with an inadequate legal excuse
for the delay. Petitioner seeks to avoid any statutory or
rule time barrier by an actual innocence claim. See
TR. pp. 40-41. That defense does not avoid the need for
permission from the Court of Appeals for the Second Circuit
to bring a second petition.
2. The basis for this Rule 60 motion is information about the
censure of the upstate prosecutor, apparently for failing to
reveal a cooperation agreement with the chief prosecution
witness in the downstate prosecution of the instant case. The
failure allegedly came to petitioner's attention after
this court denied his first petition. This is not a ground
for relief under Rule 60. That rule is designed to protect
against adjudication errors, not against events independent
of, or subsequent to, the ...