Opinion
No. 00 Civ. 9100 (DLC)
August 14, 2002
Maurice Carl Gitten, Otisville, NY, Petitioner, Pro Se.
Andrew Ceresney, Assistant United States Attorney, New York, NY, for Respondent.
OPINION AND ORDER
On April 22, 2002, this Court denied Maurice Carl Gitten's ("Gitten") motion to vacate the denial of his petition for habeas corpus pursuant to Rules 60(b)(4) and 60(b)(6), Fed.R.Civ.P. On May 7, 2002, Gitten filed a renewed motion to vacate pursuant to Rule 60(b)(2), Fed.R.Civ.P. For the reasons discussed below, Gitten's motion is denied in part and transferred in part to the Court of Appeals.
BACKGROUND
By Opinion and Order dated April 22, 2002, this Court denied Gitten's previous motion to vacate the April 9, 2001 denial of his petition for habeas corpus pursuant to subsections (4) and (6) of Rule 60(b), Fed.R.Civ.P. ("Rule 60(b)"). As described more fully in that Opinion, only one of Gitten's arguments implicated to any extent the validity of his federal habeas proceeding, namely, the argument that the Court, in ruling on his petition, did not have before it certain arguments that would establish the invalidity of his conviction. The Court rejected this argument and transferred the balance of Gitten's petition, which implicated only the integrity of his conviction, to the Court of Appeals as a second or successive habeas petition. Gitten v. United States, No. 00 Civ. 9100, 2002 WL 662883, at *3 (S.D.N.Y. Apr. 23, 2002); see also Rodriguez v. Mitchell, 252 F.3d 191, 199 (2d Cir. 2001).
Gitten filed the instant Rule 60(b)(2) motion on April 30, 2002, and moved to amend the April 30 motion papers on May 20, 2002. Gitten's motion to amend is granted nunc pro tunc.
DISCUSSION
As an initial matter, it is necessary to determine, as was the case with Gitten's previous Rule 60(b) motion, "whether the motion is addressed to the integrity of the federal habeas proceedings, or is instead a vehicle for filing a second or successive petition." Gitten, 2002 WL 662883, at *2; see also Rodriguez, 252 F.3d at 199. Gitten argues that the denial of his habeas petition should be vacated because subsequent to that decision, he discovered new facts that demonstrate the invalidity of his conviction for illegal reentry and the ineffectiveness of his counsel. These arguments are directed principally toward the validity of his underlying conviction. The bulk of Gitten's Rule 60(b)(2) motion is thus a third or successive petition and must be transferred to the Court of Appeals.
Gitten also challenges the denial of his habeas petition on the ground that the Court did not have before it facts — indeed, that such facts were not available at the time of his petition — that would demonstrate the invalidity of his conviction. To the extent that this argument challenges the integrity of his federal habeas proceedings, it must nevertheless be denied.
Rule 60(b) provides that a motion pursuant to its first three subsections must be made "not more than one year after the judgment, order, or proceeding was entered or taken." Fed.R.Civ.P. 60(b). Gitten seeks, pursuant to subsection (2) of Rule 60(b), to vacate this Court's April 9, 2001 denial of his petition for a writ of habeas corpus. Gitten's Rule 60(b)(2) motion, filed on April 30, 2002, is untimely.
Even were Gitten's motion timely, it would not provide a basis for vacating the denial of Gitten's habeas corpus petition. Under Rule 60(b)(2), the movant must demonstrate that the evidence was "of such importance that it probably would have changed the outcome." United States v. Int'l Broth. of Teamsters, 247 F.3d 370, 392 (2d Cir. 2001) (citation omitted). To the extent that Gitten's petition is construed as directed to the validity of his habeas proceedings, Gitten's newly discovered evidence does not present grounds for vacating that decision because this evidence would not have changed the outcome.
In connection with the instant motion, Gitten has submitted warrants for his arrest issued by the INS in 1984 and 1991, as well as evidence documenting his diligent pursuit of this information and his receipt of the warrants in August 2001, months after the denial, of his habeas petition. The warrants do not indicate that they were executed or served on Gitten; in particular, the service portion of the warrants are blank. Gitten contends that this new evidence establishes that his prior arrests for unlawful reentry were void because the warrants were not executed, served or entered into the record. He argues that he was denied effective assistance of counsel because his counsel did not conduct a reasonable investigation into the lawfulness of his prior deportations. Gitten contends that had he been informed of this defense, he would not have pleaded guilty to unlawful reentry.
Gitten also submitted this evidence to the Court in his previous Rule 60(b) motion to vacate the denial of his habeas petition.
Service, execution, and entry into the record of the 1984 and 1991 warrants, or lack thereof, could have had no effect on the legality of Gitten's deportation proceedings because his deportation proceedings were validly instituted by Order to Show Cause. Gitten does not challenge the validity of the 1984 and 1991 Orders to Show Cause, and, in fact, himself submitted these Orders to the Court in connection with his previous Rule 60(b) motion. "Although, before 1956, every deportation proceeding was commenced with an arrest, such proceedings are now customarily initiated by an order to show cause." Johns v. Dep't of Justice, 653 F.2d 884, 889 n. 7 (5th Cir. 1981); see also 8 C.F.R. § 240.40 (2002); Waldron v. I.N.S., 17 F.3d 511, 516 (2d Cir. 1993). Consequently, between February 6, 1956, when the Code of Federal Regulations was amended to allow the initiation of deportation proceedings by Order to Show Cause, see Chung Young Chew v. Boyd, 309 F.2d 857, 861 n. 7 (9th Cir. 1962), and before April 1, 1997, after which deportation proceedings are required to be initiated with a Notice to Appear, see 8 C.F.R. § 239.1; id. § 240.40; Rojas-Reyes v. I.N.S., 235 F.3d 115, 120 (2d Cir. 2000), execution and service of a warrant — i.e., the taking of the alien into custody — was not a prerequisite to INS jurisdiction. Gitten's deportation proceedings were validly initiated with Orders to Show Cause in 1984 and 1991 while Gitten was in state custody.
Gitten also raises for a second time the arguments he raised in his first Rule 60(b) motion. Among other things, Gitten argues that he was denied his right to appeal and to judicial review, and that he was not informed by the Immigration Judge of his right to apply for Section 212(c) relief. As described in this Court's prior Opinion, however, these arguments challenge only the validity of his conviction and are successive petitions.
CONCLUSION
For the reasons stated above, Gitten's Rule 60(b)(2) motion for reconsideration of this Court's April 9, 2001 denial of his habeas petition is denied.
A petitioner is required to obtain a certificate of appealability before he may appeal the dismissal of a Rule 60(b) motion challenging the validity of a denial of a petition for a writ of habeas corpus. Kellogg v. Strack, 269 F.3d 100, 103 (2d Cir. 2001), cert. denied, 122 S.Ct. 1306 (2002). I find that the petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Id. at 104. In addition, I find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
Because Gitten has also raised claims that implicate only the validity of his underlying conviction, the remainder of his petition is a third or successive habeas petition. The Clerk of Court is directed to transfer the case to the United States Court of Appeals for the Second Circuit for consideration of certification pursuant to 28 U.S.C. § 2244. Corrao v. United States, 152 F.3d 188, 190 (2d Cir. 1998).
SO ORDERED: