United States District Court, E.D. New York
Plaintiff: Rudi Rivas, pro se
Defendant: No. appearance.
the Court is a Motion for Reconsideration and for the
Appointment of Pro Bono Counsel by incarcerated
pro se petitioner Rudi Rivas
(“Petitioner”). (See Mot., D.E. 6.)
Petitioner seeks reconsideration of this Court's October
25, 2019 Order transferring this case to the Court of Appeals
for the Second Circuit as a successive Petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
(See Order, D.E. 4.) For the reasons that follow,
the Motion is DENIED.
October 9, 2019, filed another Petition seeking a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 together with
an application to proceed in forma pauperis.
(See Pet., D.E. 1; IFP Mot., D.E. 2.) Petitioner
again challenged two state court judgments of conviction
against him: (1) Indictment No. 217-94, a judgment of
conviction was entered in the County Court, Suffolk County
(Vaughn, J.) against Petitioner on September 23, 1994 upon a
guilty plea to criminal sale of a controlled substance in the
second degree, and sentencing him to eight (8) years to life;
and (2) Indictment No. 2506-94, a judgment of conviction was
entered in the same court against Petitioner on June 22, 1995
upon a jury verdict convicting him of criminal sale of a
controlled substance in the first degree and criminal
possession of a controlled substance in the first degree, and
sentencing him to twenty-five (25) years to life on each
count, to run concurrently and consecutive to his earlier
eight (8) year sentence.
Order dated October 25, 2019, this Court granted
Petitioner's application to proceed in forma
pauperis and transferred the Petition to the United
States Court of Appeals for the Second Circuit pursuant to 28
U.S.C. § 1631 because the Petition is successive within
the meaning of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). (See Order.) On November
7, 2019, Petitioner filed a Motion for Reconsideration and
for the Appointment of Pro Bono Counsel.
for reconsideration may be brought pursuant to Rules 59(e)
and 60(b) of the Federal Rules of Civil Procedure and Local
Rule 6.3. See Wilson v. Pessah, 05-CV-3143, 2007 WL
812999, at *2 (E.D.N.Y. March 14, 2007). Rule 59(e) permits a
moving party to file a motion for reconsideration when it
believes the Court overlooked important matters or
controlling decisions that would have influenced the prior
decision. Shamis v. Ambassador Factors Corp., 187
F.R.D. 148, 151 (S.D.N.Y. 1999). Reconsideration is not a
proper tool to repackage and relitigate arguments and issues
already considered by the Court in its challenged decision.
See United States v. Gross, 98-CR-0159, 2002 WL
32096592, at *4 (E.D.N.Y. Dec. 5, 2002) (A party may not use
a motion to reconsider as an opportunity to reargue the same
points raised previously.). Nor is it proper to raise new
arguments and issues. See Lehmuller v. Inc. Vill. of Sag
Harbor, 982 F.Supp. 132, 135 (E.D.N.Y. 1997).
Reconsideration may only be granted when the Court did not
evaluate decisions or data that might reasonably be expected
to alter the conclusion reached by the Court. Wechsler v.
Hunt Health Sys., 186 F.Supp.2d 402, 410 (S.D.N.Y.
2002). Rule 60(b) of the Federal Rules of Civil Procedure
provides relief from a judgment for, inter alia,
mistakes, inadvertence, excusable neglect, newly discovered
evidence, and fraud. Fed.R.Civ.P. 60(b). Rule 60(b) provides
extraordinary judicial relief that may only be granted upon a
showing of “exceptional circumstances.”
Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986).
as is readily apparent, Petitioner has not pointed to
important matters or controlling decisions that the Court
overlooked that would have influenced its prior decision. Nor
has he pointed to mistakes, inadvertence, excusable neglect,
newly discovered evidence, or fraud that would have altered
this Court's transfer of the writ. Rather, Petitioner
argues, in conclusory fashion, that “[t]his Court could
have heard the [P]etition on the merits, rather than transfer
it to the Court of Appeals.” (Mot. at 3.) Petitioner
acknowledges that he “has filed multiple habeas
petitions in the Court” yet mistakenly asserts that his
many filings “should not prevent the Court from
considering the merits of the instant [P]etition.”
(Mot. at 3.) Petitioner continues to raise the same,
unavailing arguments in the reconsideration motion that have
already been presented to and rejected by this Court.
Accordingly, the Motion for Reconsideration is DENIED.
Petitioner must move for authorization to pursue this
successive Petition for habeas relief in the United States
Court of Appeals for the Second Circuit. See 28
U.S.C. § 2244(b)(3)(A).
the fact that the United States Court of Appeals for the
Second Circuit has already entered a leave-to-file sanction
against Petitioner due to his “prior pattern of
vexatious filings”, in the interests of justice, the
Clerk of the Court shall transfer this Petition to the United
States Court of Appeals for the Second Circuit pursuant to 28
U.S.C. § 1631. Torres v. Senkowski, 316 F.3d
147, 151-52 (citing Liriano v. United States, 95
F.3d 119, 121-23 (2d Cir. 1996) (“[W]e have held that a
district court must transfer uncertified successive motions
to th[e Second Circuit Court of Appeals] pursuant to 28
U.S.C. § 1631 . . . .”); see also Rivas v.
Lee, 15-CV-7011 Mandate, dated July 20, 2017, at Docket
Entry 18 (“[T]he district court properly transferred
his district court filing to this Court as a successive 28
U.S.C. § 2254 [P]etition.”) This Order CLOSES this
case. If the Second Circuit authorizes Petitioner to proceed
in this matter, he shall move to reopen this docket number,
19-CV-5719(JS). Further, the application for the appointment
of pro bono counsel is DENIED WITHOUT PREJUDICE AND
WITH LEAVE TO RENEW if the Second Circuit authorizes
Petitioner to proceed with this matter in this Court.
Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for
the purpose of any appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21
Clerk of the Court is directed to mail a copy of this Order