Opinion
Case No. 96-CV-4656 (FB).
April 6, 2005
WILLIAM VASQUEZ, pro se, 53174-079, United States Penitentiary, Leavenworth, KS, for the Movant.
ROSLYNN R. MAUSKOPF, ESQ., United States Attorney, By: CECIL SCOTT, ESQ., Assistant United States Attorney, Brooklyn, New York, for the Respondent.
MEMORANDUM AND ORDER
William Vasquez ("Vasquez") moves, pursuant to Federal Rule of Civil Procedure 60(b), for an order reopening the § 2255 proceedings in this case. Vasquez further moves for an order granting him leave to amend his Rule 60(b) motion. For the reasons set forth below, the Court grants leave to amend, but denies the Rule 60(b) motion.
I.
In 1992, Vasquez was convicted of conspiracy to distribute cocaine and distribution of cocaine; this Court sentenced Vasquez to 235 months of imprisonment. See United States v. Grimaldi Vasquez, Case No. 91-CR-484 (E.D.N.Y.) (Judgment of Dec. 31, 1992, per Nickerson, J.). The Second Circuit affirmed, see United States v. Grimaldi, 999 F.2d 536 (2d Cir. 1993) (table), and the United States Supreme Court denied certiorari, see Grimaldi v. United States, 510 U.S. 937 (1993) (memorandum).
On September 19, 1996, Vasquez filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. Vasquez argued, inter alia, that he received ineffective assistance from both his trial and appellate counsel.
On September 30, 1998, Judge Nickerson of this Court denied the § 2255 motion. Relying on Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), he held that Vasquez's failure to raise his ineffective-assistance claims on direct appeal barred him from raising them in a § 2255 motion. Citing Strickland v. Washington, 466 U.S. 668 (1984), Judge Nickerson added that Vasquez had failed to demonstrate that his attorneys' representation fell below an objective standard of reasonable or that there was a reasonable probability that, absent the alleged errors, the outcome of his criminal case would have been different.
Vasquez then moved for reconsideration and, later, moved to amend his § 2255 motion to add a claim under Apprendi v. New Jersey, 530 U.S. 466 (2000). Judge Nickerson deemed the motion for reconsideration and the motion to amend a second § 2255 motion and, by order dated December 6, 2000, transferred the case to the circuit court pursuant to 28 U.S.C. § 2244(b)(3)(A). The circuit court denied authorization to file a second § 2255 motion, holding that Apprendi did not apply retroactively to cases on collateral review.
In the meantime, Vasquez had appealed the December 6, 2000 order on the grounds that his motion for reconsideration was not a second § 2255 motion. Judge Raggi, to whom the case had been randomly reassigned after Judge Nickerson's death, denied Vasquez's application for a certificate of appealability ("COA"); Vasquez then sought a COA from the circuit court, which denied the application and dismissed the appeal. Undaunted, Vasquez moved for reconsideration in the circuit court; after that motion was denied, he unsuccessfully petitioned the Supreme Court for a writ of certiorari.
Vasquez also petitioned for a writ of mandamus requiring Judge Nickerson to hear and rule on his motion for reconsideration; the circuit court denied the petition.
On March 19, 2004, Vasquez filed a motion to reopen the § 2255 proceedings pursuant to Federal Rule of Civil Procedure 60(b); by that time, Judge Raggi had been elevated to the circuit court and the case had been randomly reassigned to the undersigned. In addition to rearguing the merits of his original § 2255 motion, Vasquez argued that the Court should vacate its order denying the motion in light of Massaro v. United States, 538 U.S. 500 (2003), in which the Supreme Court held that ineffective-assistance claims could be raised for the first time in a § 2255 motion. On February 14, 2005, Vasquez moved to amend his Rule 60(b) motion to add a claim under United States v. Booker, ___ U.S. ___, 125 S. Ct. 738 (2005), that his sentence had been calculated in violation of his Sixth Amendment right to trial by jury.
Insofar as it reargues the claims in the § 2255 motion, Vasquez's Rule 60(b) is denied; Rule 60(b) is not a vehicle for relitigating the merits of a case, see Fleming v. New York Univ., 865 F.2d 478 (2d Cir. 1989).
Vasquez has also moved "to cure procedural violations" that allegedly occurred during sentencing. That motion — in essence, a request to be resentenced in light of Booker — is denied because, as explained below, Booker does not apply to Vasquez's case.
II.
Vasquez's motion for leave to amend his Rule 60(b) motion is granted. As amended, the Rule 60(b) motion asks the Court to vacate, in light of Massaro and Booker, its September 30, 1998 order denying Vasquez's § 2255 motion. A change in decisional law is grounds for relief from a judgment under Rule 60(b)(6) only in "extraordinary circumstances, or where the judgment may work an extreme and undue hardship[.]" Marrero Pichardo v. Ashcroft, 374 F.3d 46, 56 (2d Cir. 2004) (citation and internal quotation marks omitted).In the present case, Booker and Massaro do not present extraordinary circumstances or impose an undue hardship because neither case calls into question the correctness of Judge Nickerson's denial of Vasquez's § 2255 motion. Booker simply does not apply retroactively to a collateral challenge to a judgment that was final when the Supreme Court rendered its decision. See Hamdani v. United States, 2005 WL 419727 (E.D.N.Y. Feb. 22, 2005) (citing Green v. United States, 397 F.3d 101 (2d Cir. 2005)); Woodard v. United States, 2005 WL 524725 (E.D.N.Y. Mar. 7, 2005). Vasquez's judgment of conviction became final some 12 years before Booker was decided.
Massaro is likewise insufficient grounds for relief from the Court's order denying Vasquez's § 2255 motion. Prior to Massaro, the rule in the Second Circuit was that an ineffective-assistance claim could be raised in a § 2255 motion whether or not it had first been raised on direct appeal, unless the movant was represented by new appellate counsel on direct appeal and the claim was based solely on facts appearing the trial record; in those circumstances, an ineffective-assistance claim could not be raised for the first time in a § 2255 motion unless the movant could demonstrate cause and prejudice. See Billy-Eko v. United States, 8 F.3d 111, 114-15 (2d Cir. 1993). Massaro abrogated Billy-Eko, thereby allowing an ineffective-assistance claim to be raised for the first time in a § 2255 motion regardless of whether the claim could have been raised on direct appeal. See 538 U.S. at 504.
Here, Judge Nickerson denied Vasquez's § 2255 motion based in part on Billy-Eko; however, he also held that the ineffective-assistance claims raised in the motion were without merit. Given this ruling on the merits, Massaro had no effect on the correctness of Judge Nickerson's order denying Vasquez's § 2255 motion. Therefore, for purposes of the present case, the subsequent change in the law does not amount to extraordinary circumstances and does not impose an undue hardship on Vasquez. Accord Moses v. United States, 2005 WL 292976 (S.D.N.Y. Feb. 8, 2005) (denying Rule 60(b)(6) motion based on Massaro because movant's ineffective-assistance claims "could not succeed regardless of whether they were procedurally barred [by Billy-Eko]").
Vasquez claims that it is unclear whether the Court ruled on the merits of his claims with respect to both trial and appellate counsel; although the Court discussed the claim of ineffective assistance of trial counsel in more detail, it expressly recognized that Vasquez was asserting claims that both trial and appellate counsel were ineffective.
III.
For the foregoing reasons, Vasquez's Rule 60(b) motion is denied.
SO ORDERED.