Interesting decision out of EDNY on a Rule 60(b) motion for reconsideration. The original habeas petition had raised a Brady claim based on the prosecution's failure to turn over the criminal history of a testifying witness. In the original petition, petitioner did not provide much of a factual foundation for the claim. He presented a note from his attorney which stated that the witness had a violation in his background, but no crimes. Of course, the State did not provide any assistance in answering the question of whether the witness had a criminal background. In fact, the State denied it.
Surprise, surprise -- the witness had a "substantial criminal record relevant to credibility." So petitioner moved for reconsideration under Rule 60(b). Although the DJ denies the petition, the court acknowledged that there were "serious factual and legal problems presented" in the case. Except the DJ drops the ball on a COA.
First, the details:
Graves v. Smith
- Denying Rule 60(b) Motion
- Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
- Issues: Brady violation based on prosecution's failure to disclose criminal history of witness
ANALYSIS: DJ does a nice job with the habeas procedural issues, except for the COA.
The DJ concludes that the Rule 60(b) motion was not a second or successive petition since it "'attack[ed], not the substance of the federal court's resolution of a clim on the merits, but some defect in the integrity of the federal habeas proceedings.'" Good decision.
The DJ next concludes that Pinholster did not preclude reliance on the new evidence since it had been presented to the state courts in post-conviction proceedings. Good decision.
The Dj next concludes that, even though the state court rejected the claim on the merits, "[d]eference is not required," since the state court did not hold an evidentiary hearing, so not factual findings that are entitled to deference, and the Appellate Division's "bare conclusion [on the legal claim], without analysis, presents no opportunity for a federal court to assess whether the Appellate Division unreasonably applied federal law." Okay, maybe that last part is a bit out of the mainstream. That does not seem consistent with Richter. If a summary disposition is entitled to deference, then I would think that a bare conclusion would as well. But, in the end, that does not play a part in the analysis, since the DJ concludes under a de novo review that the Brady claim fails.
The DJ next expresses some regret that he did not order a hearing back when he originally reviewed the petition. He doesn't explain why that's relevant, but I am thinking he believes that it matters as to whether the Rule 60(b) motion was an appropriate vehicle to reconsider the claim.
Then the DJ turns to merits and concludes that the State suppressed favorable evidence, but that there was no reasonable probability that it affected the outcome of the trial. Although this witness' credibility would have been thoroughly undermined, there was other evidence against petitioner, including testimony from an alleged co-conspirator. So Brady claim fails.
The DJ then whiffs on a COA. The DJ states, "Were a certificate of appealability required for a Rule 60(b) motion to be appealed, it would be granted by this court in this case in view of the serious factual and legal problems presented. A fresh view by a panel of the Court of Appeals for the Second Circuit might be helpful."
I am not sure why the DJ would think that a COA is not necessary for the denial of a Rule 60(b) motion. Some quick research shows that the Second Circuit has held that it is necessary. See Kellog v. Strack, 269 F.3d 100, 103 (2d Cir. 2001) ("We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition.").
I hope that the DJ straightens this out. Maybe another Rule 60(b) motion is necessary.