Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Underwood

United States District Court, S.D. New York

July 30, 2018

PATRICK RICARDO SMITH, Petitioner,
v.
BARBARA UNDERWOOD, Attorney General for the State of New York, and TIMOTHY MCKOY Administrator of Franklin Correctional Center, North Carolina, Respondents.

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge.

         Petitioner 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[1] 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.)

         For the following reasons, Respondent's motion is DENIED.

         BACKGROUND[2]

         Following 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.)

         The 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.)

         After 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.

         The New 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.

         LEGAL STANDARDS

         Motions 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.

         Respondent's 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 marks omitted).

         DISCUSSION

         As a 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) (collecting cases)).

         Moreover, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.