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Case 1:05-cv-00283-MAT Document 46 Filed 06/04/13 Page 1 of 7






No. 05-CV-00283T


Pro se Petitioner Samuel LeFlore (“Petitioner”) was convicted
of Murder in the Second Degree (N.Y. Penal Law (“Penal Law”)
§ 125.25[2]), Assault in the First Degree (Penal Law § 120.10[1]),
two counts of Criminal Possession of a Weapon in the Second Degree
(Penal Law § 265.03[2]), and Criminal Possession of a Weapon in the
Third Degree (Penal Law § 265.02[4]). By Decision and Order dated
October 13, 2009, this Court denied Petitioner’s application under
28 U.S.C. § 2254 for a writ of habeas corpus (Dkt. No. 33), and
judgment was entered on October 14, 2009 (Dkt. No. 34). The Second
Circuit Court of Appeals dismissed Petitioner’s appeal on
September 15, 2010. Dkt. No. 42. Subsequently, Petitioner filed
a motion in the Second Circuit for an order authorizing this Court
to consider a successive or second habeas petition. See Court of
Appeals Case No. 12-4459, Dkt. No. 2. That motion was denied on or
about December 6, 2012. Dkt. No. 44.

Case 1:05-cv-00283-MAT Document 46 Filed 06/04/13 Page 2 of 7

This motion followed, wherein Petitioner seeks reconsideration
of this Court’s habeas decision, pursuant to Fed. R. Civ. P.
60(b)(6). Dkt. No. 45. For the reasons that follow, Petitioner’s
motion is denied.
II. Timeliness

Rule 60(b) allows a party to seek relief from a final judgment
for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence; (3) fraud;
(4) the judgment is void; or (5) the judgment has been satisfied.
Fed. R. Civ. P. 60(b)(1) - (5). Subsection (6) allows a party to
move for “any other reason that justifies relief.” Fed. R. Civ.
P. 60(b)(6).

Motions brought under Rule 60(b)(6) must be brought within a
“reasonable time.” See Fed. R. Civ. P. 60(c)(1). To determine
whether a Rule 60(b)(6) motion is brought within a reasonable time,
a court must “look at the particular circumstance of each case and
balance the interest in finality with the reasons for delay.”
Grace v. Leumi Trust Co. of N.Y., 443 F.3d 180, 190 n.8 (2d Cir.
2006) (citation and internal quotation marks omitted), cert.
denied, 549 U.S. 1114 (2007); see also Matter of Emergency Beacon
Corp., 666 F.2d 754, 760 (2d Cir. 1981) (“What qualifies as a
reasonable time . . . will ordinarily depend largely on the facts
of a given case, including the length and circumstances of the
delay and the possibility of prejudice to the opposing party.”).


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Here, Petitioner filed his motion on March 1, 2013 (Dkt.
No. 28), nearly three and a half years after entry of the judgment
from which he seeks relief. Courts consistently find shorter
delays to be unreasonable in habeas corpus cases absent some
justification for the delay. See, e.g., Kellogg v. Strack, 269
F.3d 100, 104 (2d Cir. 2001) (26 months “constitutes a patently
unreasonable delay absent mitigating circumstances”), cert. denied,
535 U.S. 932 (2002); Maisonet v. Conway, 2010 U.S. Dist. LEXIS
140762, 2011 WL 317833, at *3 n.3 (E.D.N.Y. Jan. 31, 2011) (more
than three years after denial without excuse); Reynolds v. Greene,
2010 U.S. Dist. LEXIS 13388, 2010 WL 604179, at *4 (N.D.N.Y.
Feb. 16, 2010) (more than two years) (listing cases); James v.
United States, 603 F. Supp. 2d 472, 479 (E.D.N.Y. 2009) (21
months); United States v. Morales, 2008 U.S. Dist. LEXIS 95724,
2008 WL 4921535, at *4 (S.D.N.Y. Nov. 10, 2008) (three years);
Moses v. United States, 2002 U.S. Dist. LEXIS 16799, 2002 WL
31011864, at *2 (S.D.N.Y. Sept. 9, 2002) (20 months) (listing
cases), aff’d, 119 F. App’x 357 (2d Cir.), cert. denied, 544 U.S.


Under the so-called “prison mailbox rule,” a pro se prisoner’s papers are
deemed filed when they are handed over to prison officials for forwarding to the
court. See Houston v. Lack, 487 U.S. 266, 270 (1988). Therefore, although
Plaintiff’s motion was not entered on the Court’s docket until April 5, 2013, the
Court will consider it to have been filed as of March 1, 2013, the date it was
signed by Plaintiff and deposited in the mailbox at Attica Correctional Facility
(see Certificate of Service attached to Pet’s Motion). See, e.g., Luna v. Artus,
No. 10 Civ. 2565 (PKC) (KNF), 2010 U.S. Dist. LEXIS 60927 2010 WL 2594303, at *1
n.1 (S.D.N.Y. June 18, 2010) (citing Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir.


Case 1:05-cv-00283-MAT Document 46 Filed 06/04/13 Page 4 of 7

1067 (2005). Plainly, the motion is untimely absent a sufficient
justification. Petitioner has provided no explanation for the
delay, and has not so much as even addressed the issue of
timeliness in his motion. Thus, the Court finds that Petitioner’s
motion is time-barred.
II. Lack of Jurisdiction


Even if Petitioner’s motion was not time-barred, the Court
nonetheless lacks jurisdiction to address the merits of said
motion, in which Petitioner challenges this Court’s determination
that one of his allegedly meritorious habeas claims was
procedurally defaulted from habeas review. Specifically,
Petitioner asserts that, “[t]his [motion] comes before this [C]ourt
as the result of a ‘[f]undamental [m]iscarriage of [j]ustice,’
based upon a [s]tate [p]rocedural [d]efault . . . precluding this
[C]ourt’s review to the merits of the instant petition[‘]s . . .
due process claim, and thus failing to find that the applicable
[l]aw of [d]epraved [i]ndifference [m]urder was the law in effect
when LeFlore’s conviction became final on September 15, 2003.” See
Pet’s Motion at p 3. In what amounts to a belated attempt to
overcome the procedural bar that precluded this Court from
reviewing the merits of Petitioner’s claim, Petitioner now alleges


Petitioner challenges the Court’s disposition of claim “5”, which alleged
that he was deprived of his constitutional right to due process and a fair trial
because the verdict was inconsistent insofar as he was found guilty of depraved
indifference murder and intentional assault, and because the trial court erred
in charging depraved indifference murder to the jury. See Dkt. No. 33 at p 24.


Case 1:05-cv-00283-MAT Document 46 Filed 06/04/13 Page 5 of 7

cause and prejudice for the default and also attempts to avail
himself of the miscarriage of justice exception by arguing that the
trial evidence was legally insufficient to support his conviction
for depraved indifference murder. Id. at 5-12.

Under the “law of the case doctrine,” “[w]hen an appellate
court has once decided an issue, the trial court, at a later stage
of the litigation, is under a duty to follow the appellate court’s
ruling on that issue.” Brown v. City of Syracuse, 673 F.3d 141,
147 (2d Cir. 2012) (alteration in original) (internal quotation
marks and citation omitted). “This ‘mandate rule prevents
re-litigation in the district court not only of matters expressly
decided by the appellate court, but also precludes re-litigation of
issues impliedly resolved by the appellate court’s mandate,’” Id.
(quoting Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir.
2010)), or “of issues that fall within the scope of the judgment
appealed from . . . but not raised,”, Inc. v. Lansa,
Inc., 828 F. Supp. 2d 688, 696 (S.D.N.Y. 2011) (alteration in
original) (internal quotation marks and citations omitted); see
also Fine v. Bellefonte Underwriters Ins. Co., 758 F.2d 50, 52
(2d Cir. 1985) (“Our previous ruling was the law of the case, and
the district judge correctly found that it had no jurisdiction to
review an appellate court’s decision.” (citation omitted)).

In this case, the issues in Petitioner’s Rule 60(b) motion
have already been litigated before the Second Circuit by way of


Case 1:05-cv-00283-MAT Document 46 Filed 06/04/13 Page 6 of 7

Petitioner’s appeal and his application to file a second or
successive petition. As set forth above, the Second Circuit
dismissed Petitioner’s appeal in a Mandate dated September 15,
2010. Dkt. No. 42. Further, in a Mandate dated December 6, 2012,
the Second Circuit denied Petitioner’s motion to file a second or
successive petition in this Court. Dkt. No. 44. In that
particular motion, Petitioner claimed, in the same manner he does
now, that “[he] is entitled to the new standard of review to
New York’s depraved indifferen[ce] murder law[,] as [said standard]
existed before his conviction became final.” See Court of Appeals
Case No. 12-4459, Dkt. No. 2 at ¶ 10A. Accordingly, the issues
raised in the instant motion cannot be re-litigated in the instant
III. Conclusion

For the reasons set forth above, Petitioner’s motion, pursuant
to Fed. R. Civ. P. 60(b)(6) (Dkt. No. 45), is denied. Because
Petitioner has failed to make “a substantial showing of a denial of
a constitutional right,” 28 U.S.C. § 2253 (c)(2), the Court
declines to issue a certificate of appealability. See, e.g.,
Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-113
(2d Cir. 2000). The Court also hereby certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this judgment would not
be taken in good faith and therefore denies leave to appeal as a
poor person. Coppedge v. United States, 369 U.S. 438 (1962).


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Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate


S/Michael A. Telesca

United States District Judge


June 4, 2013
Rochester, New York