Opinion
No. 99 Civ. 12279(RCC)(DFE).
December 7, 2000.
OPINION and ORDER
Petitioner Charles Jones, pro se moves to vacate this Court's Opinion and Order dated September 11, 2000, denying his habeas petition seeking release on bail pending appeal of his state court conviction. For the reasons set forth below, Petitioner's motion is denied.
I. BACKGROUND
A background discussion of Petitioner's state court conviction for burglary and criminal possession of a weapon was set forth in detail in the Court's previous Opinion and Order and will not be repeated here. Petitioner filed the habeas petition at issue on December 9, 1999, which was assigned initially to the Honorable Barbara Jones and subsequently reassigned to this Court on January 14, 2000. The matter was referred to Magistrate Judge Eaton, who issued his report on March 15, 2000, recommending that the petition be denied. Petitioner lodged objections to the Magistrate's report, and the Court reviewed the entire record de novo before rendering its own decision by Opinion and Order dated September 11, 2000. In the interim, Petitioner sought a writ of mandamus from the Second Circuit, which was denied on May 4, 2000, and also filed a motion for this Court's recusal on September 6, 2000.
In the Court's Opinion and Order dated September 11, 2000, the Court denied Petitioner's application for a writ of habeas corpus. The Petitioner argued that he met the statutory standards for bail under N.Y. Crim. Proc. Law § 510.30, and that his request for bail pending appeal was denied arbitrarily by New York State Supreme Court Justice Sullivan without sufficient justification. Petitioner also claimed that the courts of the New York State First Department are biased against him because Petitioner's first conviction was overturned via a federal court habeas proceeding.
This Court found no support for Petitioner's allegations of pervasive bias. Furthermore, this Court determined that Petitioner did not overcome the "presumption of regularity" afforded to state court bail determinations as there was a rational basis in the record to support the state court's decision. See Finetti v. Harris, 609 F.2d 594, 601 (2d Cir. 1979) (setting forth the applicable standard). This Court also concluded that there was a rational basis for Justice Sullivan to have found that a successful appeal was unlikely.
Petitioner now seeks to strike and vacate that decision "on the grounds of an existing conflict of interest known to exist between the petitioner and Judge Casey, as well as the failure of Judge Casey to address a `Motion to Recuse' filed with the court with respect to Judge Casey's dilatory conduct in deciding a habeas petition for over seven (8) [sic] months that was filed on or about December 6th, 1999." Motion to Strike "Opinion and Order" dated September 15, 2000.
Although Petitioner is enjoined from filing any civil suit in the federal courts without leave of the court, see Jones v. Newman, No. 98 Civ. 7460, 1999 WL 493429, at *14 (S.D.N.Y. June 30, 1999), that injunction does not apply to habeas proceedings such as this.
II. DISCUSSION
Petitioner has styled the instant motion as a "Motion to Strike . . . and Otherwise Vacate." Although Petitioner does not invoke any particular Federal Rule of Civil Procedure, the law is clear that a motion for reconsideration of a habeas petition, if filed within 10 days of entry of the challenged order, is treated as a Rule 59(e) motion. United States v. Clark, 984 F.2d 31, 32 (2d Cir. 1993); United States v. Eubanks, No. S7 92 Cr. 392 (PKL), 1999 WL 1261256, at *5 (S.D.N.Y. Dec. 27, 1999); see also McCowan v. Sears, Roebuck Co., 908 F.2d 1099, 1103 (2d. Cir.) (holding that "most substantive motions brought within ten days of the entry of judgment are functionally motions under Rule 59(e), regardless of their label or whether relief might also have been obtained under another provision"), cert. denied, 498 U.S. 897 (1990). Petitioner's instant motion falls within the applicable time period, as the Court's order was not entered on the docket until September 13, 2000, and the motion to strike was filed on September 22, 2000. Thus, the Court will assess this motion under the Rule 59(e) standard.The Court further notes that Petitioner also filed a notice of appeal on September 21, 2000, one day prior to filing his Rule 59(e) motion. This Court nonetheless retains jurisdiction to consider this motion although filed subsequent to the notice of appeal. See Bowers v. Andrew Weir Shipping. Ltd., 817 F. Supp. 4, 5 (S.D.N.Y. 1993). Pursuant to Rule 4(a)(4) of the Federal Rules of Appellate Procedure, the appeal is held in abeyance until the Rule 59(e) motion is decided, whereupon the previously filed notice places jurisdiction in the circuit court. Woodard v. Hardenfelder, 845 F. Supp. 960, 964-65 (E.D.N.Y. 1994). Thus, upon entry of this Order and Opinion, Petitioner is free to pursue his appellate remedies.
This Court granted Petitioner leave to appeal in forma pauperis on October 13, 2000.
A. MOTION TO RECONSIDER
In accordance with Local Rule 6.3, motions for reconsideration "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." Shrader v. CSX Trans. Inc., 70 F.3d 255, 257 (2d Cir. 1995). Local Rule 6.3 is to be "narrowly construed" and "strictly applied" so as to avoid repetitive arguments on issues that have been considered fully by the court. In re Nasdaq Market Makers Antitrust Litig., 184 F.R, D. 506, 510 (S.D.N.Y. 1999).
The Court already has considered all of the arguments advanced by Petitioner in the instant motion, and has rejected them. Generally, "Rule 59(e) may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Slattery v. Clinton, No. 96 Civ. 2366 (DLC), 1997 WL 291868, at *1 (S.D.N.Y. June 2, 1997) (quoting Charles A. Wright, et al., Federal Practice Procedure § 2810.1, at 127-128 (1995)). Petitioner puts forth no new law or facts which could justify vacatur of the earlier decision. Petitioner claims that the Court "arrived at the right factual findings, but came to the wrong conclusion based on those facts." Declaration of Charles Jones in Support of Motion to Strike or Otherwise Vacate the Order and Opinion of U.S. District Judge Richard Conway Casey dated September 15, 2000, at 7. The Court finds nothing in Petitioner's papers which supports a change in the Court's previous analysis.
The Court continues to find that there is no evidence to suggest that Justice Sullivan's decision was the result of pervasive First Department bias against Petitioner. The Court has already rejected Petitioner's contention that because certain Justices who reviewed his first appeal are still on the bench, Petitioner will not be able to receive a fair hearing. As the Court noted in its previous Opinion and Order, conclusory accusations of bias are insufficient and should be disregarded. See Purveegiin v. United States INS Processing Ctr., 73 F. Supp.2d 411, 419 (S.D.N.Y. 1999); Osinoiki v. Riley, No. 90 Civ. 2097, 1990 WL 152540, at *3 (E.D.N.Y. Sept. 28, 1990).
Further, Petitioner still cannot meet his burden of overcoming the presumption of regularity accorded to state court bail determinations. See Finetti, 609 F.2d at 601. This Court already examined the criteria for bail set forth in N.Y. Crim. Proc. Law § 510.30(2)(a), and held that Petitioner did not establish the requisite lack of rational basis. Moreover, section 510.30(2)(b) provides that "a determination that the appeal is palpably without merit alone justifies, but does not require, a denial of the application, regardless of any determination made with respect to the factors specified in paragraph (a)." This Court finds that Justice Sullivan reasonably could have concluded that Petitioner's appeal is without merit.
Although not an enumerated provision of the statute, courts may also consider the threat to public safety when considering a bail application. See Brunetti v. Scotti, 77 Misc.2d 388, 390, 353 N.Y.S.2d 630, 632 (Sup.Ct. New York Co. 1974); see also 75 A.L.R.3d 956, 4c (1977). This Court, in its previous Opinion and Order, found insufficient evidence in the record to consider this point.
As noted in the previous Opinion and Order, Petitioner contests decisions on which the trial judge is accorded broad discretion and which are unlikely to be overturned on appeal, such as the limiting of cross-examination, juror prejudice and the exclusion of evidence. Indeed, the brief submitted by Petitioner's appellate counsel addressed only one issue: whether the trial court erred when it declined to discharge a juror who admitted to being frustrated by Petitioner's self-representation such that his impartiality might be compromised. The juror also stated that he discussed with other jurors elements of testimony which the juror believed he had misheard. The trial judge conducted a voir dire of the jury at that time and declined to excuse the juror. The trial judge later revisited the issue, finding that the discussions between that juror and others were not on the merits and that the juror's objectivity was unaffected. Moreover, at that time, the juror professed no doubt as to his ability to deliberate fairly. The judge again declined to dismiss the juror.
As conceded by Petitioner's appellate counsel, this decision to discharge a juror rests within the discretion of the trial court and is made on a case-by-case basis. See People v. Velez, 222 A.D.2d 539, 540, 634 N.Y.S.2d 758, 759-760 (2d Dep't 1995) ("A Trial Judge is vested with `broad discretion' in ruling on the issue of juror prejudice."), appeal denied, 87 N.Y.2d 978, 664 N.E.2d 1270, 642 N.Y.S.2d 207 (1996). If a court determines after reasonable inquiry that a juror will cast aside preconceived notions and render a verdict based solely on the evidence, then the juror may be considered fit for service. Id. Here, the trial court conducted an inquiry and ultimately determined that the juror could continue to serve. Given the broad latitude accorded to the trial court, there is a rational basis to support a finding that the Petitioner's appeal is unlikely to succeed.
Therefore, as Petitioner has not presented any facts or law which merit disturbing the Court's prior ruling, Petitioner's motion for reconsideration is denied.
B. MOTION TO RECUSE
In addition to rearguing the merits of his habeas petition, Petitioner also seeks reconsideration on the ground that the Court failed to address his motion to recuse. The Court notes at the outset that it received Petitioner's motion for recusal on September 13, 2000, one day after the Court's decision was filed. Motions to recuse are "presumptively untimely" when brought after entry of judgment. Katzman v. Victoria's Secret Catalogue, 939 F. Supp. 274, 278 (S.D.N.Y. 1996) (quoting Apple v. Jewish Hosp. and Med. Ctr., 829 F.2d 326, 333-34 (2d Cir. 1987)). This rule is intended to prevent litigants from escaping the consequences of adverse decisions by the sitting judge. See E. J. Gallo Winery Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992). However, as Petitioner's motion to recuse was dated and filed with the Pro Se Office before the Court rendered its decision, the rationale for the rule is inapplicable and the Court will address the motion on the merits.
The Court's Opinion was signed and dated on September 11, 2000.
Although not cited by Petitioner, motions to recuse are governed by Title 28, United States Code, Sections 144 and 455. Section 144 provides for recusal where the judge has a "personal bias or prejudice" against a party, and requires that the movant submit a supporting affidavit and certificate of good faith. Although Petitioner submitted only an unsworn declaration with his motion, Petitioner will not be prejudiced by his failure to comply with the procedural prerequisites of Section 144. Section 455 is "complementary" to Section 144 and the test for bias under both statutes is the same: "whether a reasonable person, knowing all the facts, would conclude that the court's impartiality might reasonably be questioned." Thomas v. Trustees for Columbia Univ., 30 F. Supp.2d 430, 431 (S.D.N.Y. 1998) (quoting Apple, 829 F.2d at 333). The Petitioner bears a "substantial" burden to overcome a presumption of impartiality and the judge has an affirmative duty not to disqualify himself unnecessarily. Id.
Here, Petitioner argues for recusal on two bases: (1) that "for unexplained reasons" the Court engaged in a "judicial filibuster" because it had not yet decided Petitioner's habeas motion; and (2) that the Petitioner sought mandamus from the Second Circuit regarding the Court's alleged delay in rendering its decision on the habeas motion. Declaration of Charles Jones in Support of Recusal of Judge Richard Conway Casey and for Reassignment to Another U.S. District Judge dated August 25, 2000.
Petitioner's untimeliness argument is insufficient to justify recusal. Here, the Court rendered its decision approximately six months after the Magistrate Judge issued his Report and Recommendation and the Petitioner submitted his objections to that Report. Petitioner proffers no authority which indicates that such time elapse is grounds for recusal, and the Court will not recuse itself on that basis. See United States v. LaMorte, 940 F. Supp. 572, 577 (S.D.N.Y. 1996) (holding that 45 month delay in deciding Fed.R.Crim.P. 35(b) motion was not grounds for recusal), aff'd 112 F.3d 506 (2d Cir. 1997). Moreover, the fact that the Petitioner sought mandamus against this Court is also irrelevant. A litigant's decision to invoke proper mechanisms of appellate review cannot be deemed to bias the Court pro see; to hold otherwise would subject judges to recusal after every remand or mandamus.
There is simply no basis to question the Court's impartiality here. Notably, Petitioner does not make any particularized allegations of personal bias or animosity on the part of the Court. Thus, Petitioner's motion for recusal is denied.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion for reconsideration is denied.