United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge.
Patrick Smith, an inmate at the Franklin Correctional Center,
North Carolina, brings this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his
future custody for a conviction obtained by the State of New
York. Currently before the Court is the New York
Respondent's motion seeking reconsideration of this
Court's September 5, 2017 Opinion and Order, which denied
all but one of Petitioner's claims. (Respondents'
Request for Reconsideration (“Resp.'s Mot.”),
ECF No. 48.)
following reasons, Respondent's motion is DENIED.
Petitioner's state convictions, he timely filed the
instant petition for a writ of habeas corpus (the
“Petition”) on November 22, 2013 (ECF No. 1),
adopting certain arguments made in his counseled brief to the
Appellate Division on direct appeal, as well as certain
arguments contained in his pro se supplemental brief
filed at that time. Specifically, Petitioner asserts that 1)
he was denied his speedy trial right under the Interstate
Agreement on Detainers, 2) the indictment was
jurisdictionally defective, 3) the jury panel did not fairly
represent a cross-section of the population, 4) the
prosecutor was improperly allowed to cross-examine him about
a previous robbery for which he was acquitted, 5) the trial
court erred in refusing to uphold his objection pursuant to
Batson v. Kentucky, 479 U.S. 79 (1986), during jury
selection, 6) he was denied his right of confrontation with
respect to DNA evidence presented at trial, and 7) the trial
court erred in sentencing him in the aggravating range due to
his prior record. (Id.)
Court referred this matter to Magistrate Judge Lisa Margaret
Smith to issue a Report and Recommendation on the Petition on
January 06, 2014. (Order of Reference, ECF No. 5.) This
matter was subsequently re-assigned and referred to
Magistrate Judge McCarthy on May 1, 2014. Judge McCarthy
issued her Report and Recommendation (the
“Report”) on January 9, 2017, recommending this
Court deny the Petition. (ECF No. 38.) Specifically, Judge
McCarthy found that most of Smith's claims are
procedurally barred, and that, alternatively, none of his
claims present grounds for relief from his conviction.
(Id.) Petitioner, after requesting and receiving an
extension of time from this Court, filed timely objections to
the Report on March 30, 2017. (ECF No. 44.)
careful review of the Petition, Judge McCarthy's Report,
and Petitioner's objections, this Court issued an Opinion
and Order on September 5, 2017, partially adopting Judge
McCarthy's Report and denying all but one of
Petitioner's claims. (ECF No. 45.) The Court agreed with
Petitioner, however, that the trial court failed to conduct
the requisite analysis under the third step of
Batson and assess the credibility of the
prosecution's explanation for peremptorily striking a
juror. The Court held resolution of the petition for a writ
of habeas corpus in abeyance pending a reconstruction hearing
to address Petitioner's remaining Batson claim.
York State Respondent subsequently filed a motion for
reconsideration, arguing that Petitioner's remaining
Batson claim is unexhausted and procedurally barred,
as it was not raised in Petitioner's direct appeal to the
Appellate Division. (See Resp.'s Mot. at 1.) The
Court considers Respondent's argument in turn.
for reconsideration are typically governed by Local Civil
Rule 6.3 and the Federal Rule of Civil Procedure 60(b). As a
threshold matter, however, Rule 60(b) applies only to
“final" judgments. In re Shengdatech, Inc.
Sec. Litig., No. 11-CV-1918 (LGS), 2015 WL 3422096, at
*3 (S.D.N.Y. May 28, 2015); see also Fed. R. Civ. P.
60(b). “The prevailing rule in this Circuit and
elsewhere is that an order is final for purposes of Rule
60(b) when it is appealable.” In re
Shengdatech, 2015 WL 3422096, at *3 (collecting cases).
For the purposes of appealability, “[a] final judgment
or order is one that conclusively determines all pending
claims of all the parties to the litigation, leaving nothing
for the court to do but execute its decision.”
Petrello v. White, 533 F.3d 110, 113 (2d Cir. 2008).
Because the Court's September 5, 2017 Opinion did not
dispose of all pending claims, it was not a final judgment or
order. Accordingly, Rule 60(b) is inapplicable here. See
In re Shengdatech, 2015 WL 3422096, at *4.
motion must, therefore, be construed as a motion for
reconsideration under Local Civil Rule 6.3. “The
standard for granting a motion for reconsideration pursuant
to Local Rule 6.3 is strict.” Targum v. Citrin
Cooperman & Company, LLP, No. 12-CV-6909 (SAS), 2013
WL 6188339, at *1 (S.D.N.Y. Nov. 25, 2013).
“[R]econsideration 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.” Mahadeo v. New York City Campaign Fin.
Bd., 514 Fed.Appx. 53, 55 (2d Cir. 2013) (internal
quotation marks omitted) (citing Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Moreover, a Rule
6.3 motion “cannot assert new arguments or claims which
were not before the court in the original motion.”
McGraw-Hill Glob. Educ. Holdings, LLC v. Mathrani,
293 F.Supp.3d 394, 397 (S.D.N.Y. 2018) (internal quotation
preliminary matter, the Court notes that Respondent's
motion for reconsideration is untimely. “Under Local
Civil Rule 6.3, ‘a notice of motion for reconsideration
or reargument of a court order determining a motion shall be
served within fourteen (14) days after the entry of the
Court's determination of the original motion . . .
.'” McDowell v. Eli Lilly & Co., No.
13-CV-3786, 2015 WL 4240736, at *1 (S.D.N.Y. July 13, 2015)
(quoting Local Civil Rule 6.3)). Here, the Court issued its
initial decision on September 5, 2017. (See ECF No.
45.) Respondent did not file the present motion, however,
until September 26, 2017-a full 21 days after the Court
rendered its opinion. (See ECF No. 48.) “As
numerous cases from this Circuit have held, the untimeliness
of a motion for reconsideration is reason enough to deny the
motion.” McGraw-Hill Glob. Educ. Holdings,
LLC, 293 F.Supp.3d at 397 (citing Cyrus v. City of
N.Y., 2010 WL 148078, at *1 (E.D.N.Y. Jan. 14, 2010)
Respondent is, for the first time, arguing that
Petitioner's remaining Batson claim is
unexhausted. As Respondent concedes, the state did not
address the Batson step-three argument in its
opposition to Petitioner's request for habeas relief.
(Resp.'s Mot at 2.) Such a failure is also typically
sufficient grounds to justify denial of reconsideration.
See Ret. Bd. of Policemen's Annuity & Ben. Fund
of City of Chicago v. Bank of New York Mellon, No.
11-CV-5459 (WHP), 2013 WL 593766, at *2 (S.D.N.Y. Feb. 14,
2013) (“It is implicit in [its] language that a motion
for reconsideration cannot assert new arguments or
claim which ...