United States District Court, S.D. New York
OPINION AND ORDER
H. STEIN, U.S. DISTRICT JUDGE.
Davis brings this pro se motion pursuant to Federal
Rule of Civil Procedure 60(b) for relief from this
Court's 2011 denial of his petition for a writ of habeas
corpus. See Davis v. People, No. 07-Cv-9265, 2011WL
2518951 (S.D.N.Y., May 18, 2011) (report and recommendation),
adopted 2011 WL 2519206 (S.D.N.Y. June 23, 2011).
That motion is denied as beyond the scope of Rule 60(b).
State Criminal Proceedings
February 26, 2003, Davis was convicted by a Bronx jury of
murder in the second degree, criminal possession of a weapon
in the second degree, and criminal possession of a weapon in
the third degree. Davis, 2011 WL 2518951, at *6. On
April 15, 2003, Davis was sentenced to a term of twenty-five
years to life, which he is currently serving at Sullivan
Correctional Facility. Id.
by counsel, Davis appealed his conviction to the Appellate
Division, First Department, where he asserted that his
constitutional rights had been violated in the trial court.
The Appellate Division rejected Davis's arguments and
affirmed his conviction on June 26, 2007. People v.
Davis, 839 N.Y.S.2d 50 (1st Dep't 2007). Davis's
counsel asked the New York Court of Appeals for leave to
appeal. The request included the arguments that were rejected
by the Appellate Division, plus an ineffective assistance of
counsel claim. Davis, 2011WL 2518951, at *7.
Davis's request for leave to appeal was denied on July
26, 2007. Id.; see People v. Davis, 9 N.Y.3d 864
pro se, Davis then filed a motion in New York
Supreme Court, Bronx County, to vacate his judgment of
conviction. Davis claimed that his trial attorney had failed
to examine prosecution witnesses about the victim's gang
involvement, even though the trial judge was willing to allow
such examination if counsel laid a proper foundation. Davis
argued that this failure rendered his trial counsel's
assistance constitutionally ineffective. Davis, 2011
WL 2518951, at *7. The court denied Davis's motion on the
merits on January 15, 2009, and the Appellate Division denied
Davis's request for leave to appeal on May 5, 2009.
Federal Habeas Petition
also filed a pro se petition for habeas corpus in
this Court, raising essentially the same arguments that the
state courts had rejected. This Court referred the case to
Magistrate Judge Frank Maas for a Report and Recommendation
("R&R"). Id. Judge Maas found that
Davis's claims were procedurally barred because the state
court's prior denial rested on adequate and independent
state grounds, and Davis failed to exhaust one of his claims
in state court. Nonetheless, Judge Maas proceeded to the
merits of all of Davis's claims, and rejected them on the
merits in his May 18, 2011, R&R. Reviewing Judge
Maas's R&R de novo, this Court adopted it
and dismissed Davis's petition on June 23, 2011.
Davis v. People, No. 07- Cv-9265, 2011 WL 2519206
(S.D.N.Y., June 23, 2011). Davis filed a notice of appeal on
July 14, 2011, and on September 30, 2011, the appeal was
deemed by the U.S. Court of Appeals for the Second Circuit to
be in default for failure to pay the filing fee and was
dismissed. Mandate of USCA, Sept. 30, 2011, ECF No. 23.
now seeks relief pursuant to Rule 60(b) from this Court's
denial of his habeas petition. He argues that he was entitled
to an evidentiary hearing to pursue the claim of ineffective
assistance of trial counsel asserted in his habeas petition,
and that he did not get such a hearing because his
"jailhouse lawyer" neither asked for one nor
objected to Judge Maas's R&R. Affidavit in Support of
Motion at ¶ 10, ECF No. 25. Davis seeks relief from the
judgment dismissing his habeas petition in order to now
proceed with an evidentiary hearing.
60(b) allows for relief from a final judgment, order, or
proceeding. Fed.R.Civ.P. 60(b). Although a motion may be
styled as a Rule 60(b) motion, when it asks for relief from
denial of a habeas petition, it may in certain circumstances
be considered a second or successive habeas petition.
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005);
see also Harris v. United States, 367 F.3d 74,
77 (2d Cir. 2004); Peace v. United States,
No. 05-Cv-1854, 2011 WL 2471067, at *2 (S.D.N.Y. June 21,
2011). If a Rule 60(b) motion advances a substantive claim
for relief that has been previously denied on the merits in a
habeas petition, then the Rule 60(b) motion is properly
considered to be a second or successive habeas petition.
Gonzalez, 545 U.S. at 531; compare Peace,
2011 WL 2471067, at *2 (considering a Rule 60(b) motion as a
second or successive habeas petition where the claim for
relief was denied on the merits in a habeas
proceeding), with Alston v. Lee, No. Ol-Cv-2889,
2013 WL 3009739, at *2 (considering a Rule 60(b) motion
without construing it as a second or successive habeas
petition, where the claim for relief was procedurally
barred in a habeas proceeding for failure to exhaust).
"when a Rule 60(b) motion attacks not the substance of
the federal court's resolution of a claim on the merits,
but some defect in the integrity of the federal habeas
proceedings, " then the motion does not count as a
second or successive habeas petition. Gonzalez, 545
U.S. at 532; see Harris, 367 F.3d at 77
(permitting Rule 60(b) relief from a previous habeas
proceeding only when the "motion attacks the integrity
of the ...