United States District Court, E.D. New York
NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner William Figueroa moves under Rule 60(b) of the
Federal Rules of Civil Procedure to "reopen the judgment
denying federal habeas relief." (Mot. for Reconsid.
("Pet'r Mot.") (Dkt. 78) at 1.) For the
following reasons, Petitioner's Motion is DENIED.
court assumes familiarity with the underlying facts,
procedural history, and relevant law, especially in light of
Petitioner's multiple prior filings that this court
construed as impermissible successive petitions.
(See Nov. 9, 2016, Order (Dkt. 75); May 16, 2013,
Order (Dkt. 69); Mar. 3, 2010, Order (Dkt. 52); May 1, 2008,
Order (Dkt 42).) Petitioner was convicted of murder in 1991
in the New York Supreme Court, Kings County. In addition to
direct appeals, Petitioner has filed numerous pro se
collateral attacks under 28 U.S.C § 2254 and Rule 60(b),
all of which have been unsuccessful. (See, e.g..
Mar. 3, 2010, Order at 2-5; May 16, 2013, Order at 2-3.)
district court may only consider a successive habeas petition
if the Court of Appeals certifies that the application
presents a claim that "(1) relies on a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable"; or (2) presents new facts which could not
have previously been discovered. See 28 U.S.C. §
2244(b)(2). Rule 60(b) motions, meanwhile, offer an
opportunity to seek relief from a final judgment, order, or
proceeding for any reason "that justifies relief."
Fed.R.Civ.P. 60(b)(6). However, where a Rule 60(b) motion
"attacks the underlying conviction[J ... the court may
treat the Rule 60(b) motion as 'a second or
successive' habeas petition, in which case it should
[either] be transferred to [the Second Circuit] for possible
certification, " or denied "'as beyond the
scope of Rule 60(b).'" Harris v United
States. 367 F.3d 74, 79-82 (2d Cir. 2004) (quoting
Gitten v. United States. 311 F.3d 529, 534 (2d Cir.
light of Petitioner's history of impermissible successive
motions, " this court has already warned Petitioner in
the strongest terms that he may not circumvent the proper
procedure for successive petitions, stating: "Should
Petitioner continue to file successive petitions without
first seeking authorization from the Second Circuit, this
court will exercise its discretion to deny those motions
outright." (Nov. 9, 2016, Order at 2-3.) Nonetheless,
Petitioner's Motion restates multiple challenges to his
underlying conviction, all of which this court rejected 16
years ago.These claims represent successive habeas
claims because they do not allege any error in
Petitioner's prior federal habeas proceeding.
Harris. 367 F.3d at 79-82. Pursuant to the
court's prior order, the court declines to "order
any further curative transfers." (Nov. 9, 2016, Order at
2.) The court therefore denies these claims as beyond the
scope of Rule 60(b).
30-page Motion contains a single claim that properly seeks
relief under Rule 60(b). Petitioner argues that, in light of
the Supreme Court's recent decision in Buck v.
Davis. ___ U.S. ___, 137 S.Ct. 759 (2017), this court
should reconsider one of its prior orders denying a previous
Rule 60(b) motion. Because this claim attacks a prior order
from this court rather than Petitioner's underlying
conviction, the claim is properly brought as a new motion
under Rule 60(b). Harris, 367 F.3d at 79-82.
order dated May 22, 2013 (the "May 2013 Order"),
this court rejected Petitioner's Rule 60(b) claim that
reconsideration was merited under the new law established in
Martinez v. Ryan, 566 U.S. 1 (2012). (May 2013 Order
at 6.) Martinez held that "when a State
requires a prisoner to raise a claim of ineffective
assistance at trial in a collateral proceeding, a prisoner
may establish cause for procedural default of such
claim" when "appointed counsel in the
initial-review collateral proceeding ... was
[constitutionally] ineffective." 566 U.S. at 14
(citation omitted). This court denied Petitioner's
motion, concluding that "the fact that the Supreme Court
changed precedent more than a decade" after the original
denial of Petitioner's habeas petition "is not an
extraordinary circumstance warranting relief under Rule
60(b)(6)." (May 2013 Order at 8.) Petitioner now argues
that the Supreme Court's recent decision in Buck
implies that Martinez can be applied retroactively,
and that this court should reconsider its rejection of
Martinez as an "extraordinary
circumstance" meriting relief under Rule 60(b).
Pet'r Mot. ¶¶ 10-12.
has misconstrued the holding in Buck. While the
Buck Court did "conclude that Martinez
... appl[ies] to [the habeas petitioner's] claim, "
the Court noted that the respondent had failed to raise the
issue of retroactivity in the lower courts, and had
consequently waived the argument for the purpose of Supreme
Court review. See 137 S.Ct. at 780. Indeed, the
Court explicitly stated that Buck does not create
any binding rule regarding the retroactive application of
Martinez. Id. ("We reach no broader
determination concerning the application of
[Martinez]."). Thus, because the application of
Martinez was contingent on the parties' waiver
of the retroactivity argument, and because this application
was explicitly limited to Buck, Petitioner's
Motion fails to provide any relevant grounds for
reconsideration of the court's May 2013 Order.
Petitioner's claim for reconsideration is denied.
foregoing reasons, Petitioner's Motion (Dkt. 78) is
DENIED. Petitioner has violated the court's clear warning
about successive habeas petitions, a warning issued less than
six months before Petitioner signed and sent his Motion. The
court must therefore escalate the consequences of
non-compliance: Petitioner is hereby cautioned that filing
additional meritless motions may, on notice and opportunity
to be heard, lead the court to enjoin him from further
filings in this matter without first obtaining permission
from the court. The Clerk of Court is respectfully
directed to send a copy of this order to pro se
 Petitioner's reasserted claims
include ineffective assistance of trial counsel (compare,
e.g.. Pet'r Mot. ¶¶ 5-8 with Feb.
2, 2001, Mem. & Order ("2001 M&O") (Dkt.
18) at 11-13); ineffective assistance of appellate counsel
(compare, e.g.. Pet'r Mot. ¶ 3
with 2001 M&O at 13-15); a defective indictment
(compare Pet'r Mot. ¶¶ 13-14
with 2001 M&O at 15); allegedly inappropriate
conduct by the trial court (compare Pet'r Mot.
¶¶ 35-39 with 2001 M&O at 22-23); and flawed
jury instructions (compare Pet'r Mot.
¶¶ 40-41 with 2001 M&O at 23-24).
 "The district courts have the
power and obligation to protect the public and the efficient
administration of justice from individuals who have a history
of litigation entailing vexation, harassment and needless
expense to other parties and [imposing] an unnecessary burden
courts and their supporting personnel." Lau v.
Meddaugh,229 F.3d 121, 123 (2d Cir. ...