Wilson v. Capra

JERMAINE WILSON, Petitioner, v. MICHAEL CAPRA, Superintendent of Sing Sing Correctional Facility, Respondent.

No. 15-CV-6495 (MKB)

United States District Court, E.D. New York

July 26, 2021

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Petitioner Jermaine Wilson, proceeding pro se and currently incarcerated at Sing Sing Correctional Facility in Ossining New York, brought the above-captioned petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 2, 2015, alleging that he is being held in state custody in violation of his federal constitutional rights. (Pet., Docket Entry No. 1.) Petitioner was convicted following a jury trial in the Supreme Court of New York, Kings County, (the “Trial Court”) for one count of murder in the second degree. (Id. at 1.) The Trial Court sentenced Petitioner to a prison term of twenty-five years to life (id.), and the New York Supreme Court, Appellate Division, (the “Appellate Division”), affirmed the conviction, People v. Wilson, 981 N.Y.S.2d 812 (App. Div. 2014). The New York Court of Appeals denied leave to appeal. People v. Wilson, 24 N.Y.3d 966 (2014). In support of his petition, Petitioner raised five claims (1) insufficiency of the evidence in light of the credibility issues of the primary eyewitnesses; (2) Confrontation Clause violation in relation to the admission of out-of-court statements of two nontestifying eyewitnesses; (3) improper admission of testimony and jury instructions concerning efforts to locate missing witnesses for trial; (4) improper jury instruction concerning the credibility of an eyewitness and (5) failure to instruct the jury that jurors could draw no adverse inference from Petitioner's decision not to testify. (Pet. 1, 4-12.) On October 12, 2020, the Court denied the petition on all five claims and granted a certificate of appealability as to the first four. (Mem. and Order dated Oct. 12, 2020 (“October 2020 Decision”), Docket Entry No. 18.) On December 10, 2020, Petitioner filed a motion to vacate his conviction and, in effect, seeks reconsideration of the October 2020 Decision, pursuant to Rule 60(b)(1) of the Federal Rules of Civil Procedure.^[1] (Pet'r's Mot. to Recons. (“Pet'r's Mot.”), Docket Entry No. 21; Pet'r's Aff. in Supp. of Mot. (“Pet'r's Mem.”), Docket Entry No. 22.)

For the reasons set forth below, the Court denies Petitioner's motion.

I. Background

The Court assumes familiarity with the facts as detailed in the October 2020 Decision and provides only a summary of the pertinent facts. (See October 2020 Decision 2-30.)

a. Trial Court

A grand jury indicted Petitioner on one count of murder in the second degree and criminal possession of a weapon in the second and third degrees. (V.D. 192.)^[2] Prosecutors tried Petitioner before a jury beginning on March 17, 2010, and ending with the jury's verdict on March 30, 2010. (T.)

During the trial, defense counsel requested that the jury instructions include a charge that the jury draw no inference from the fact that Petitioner did not testify in the case. (T. 469.) Prosecutors did not object. (Id.) The Trial Court did not explicitly grant or deny the request for a no-inference charge:

THE [TRIAL] COURT: Let's - what are your request [sic] to charge in this case, [defense counsel]?

[DEFENSE COUNSEL]: I know the [c]ourt's normal charge, so obviously I won't object to what you usually - well, I haven't been before you in a while. The charge is the same? I'm sure it is. We haven't made a determination whether [Petitioner] would testify or not, but I don't think he will. So if - I would request -

THE [TRIAL] COURT: If he didn't testify you would request a no inference charge.

[DEFENSE COUNSEL]: Yes. And I know you were going to give it anyway, but, yes.

THE [TRIAL] COURT: What else?

(Id.) The Trial Court intended but inadvertently neglected to include a no-inference charge when the Trial Court instructed the jury. (Id. at 565-91; Def.-Appellant Br. (“Pet'r's App. Div. Br.”) annexed to Resp. to Order to Show Cause as Ex. C, at 73, Docket Entry No. 5-5.) Although defense counsel objected to other parts of the jury instructions, defense counsel did not object to the Trial Court's failure to include a no-inference charge. (T. 593-94.)

On March 30, 2010, the jury unanimously found Petitioner guilty of murder in the second degree, (id. at 610, 623-25), and on April 16, 2010, the Trial Court sentenced Petitioner to the maximum sentence allowable under state law, twenty-five years to life in prison, (S. 1, 9).

d. Appellate Division

Petitioner appealed his conviction to the Appellate Division arguing (1) insufficiency of the evidence in light of the credibility issues of the primary eyewitnesses; (2) Confrontation Clause violation in relation to the admission of out-of-court statements of two nontestifying eyewitnesses; (3) improper admission of testimony and jury instructions concerning efforts to locate missing witnesses for trial; (4) improper jury instruction concerning the credibility of an eyewitness; and (5) failure to instruct the jury that jurors could draw no adverse inference from Petitioner's decision not to testify. (Pet'r's App. Div. Br. 22-60.) The Appellate Division refused to consider Petitioner's no-adverse-inference argument because Petitioner failed to preserve it for appeal. Wilson, 981 N.Y.S.2d at 813. In addition, the Appellate Division declined to consider the argument “in the exercise of [its] interest of justice jurisdiction.” Id. at 813. The Appellate Division rejected all five of Petitioner's arguments and affirmed the conviction. Id.

Petitioner sought leave to appeal to the Court of Appeals, (Pet'r's Letter dated May 20, 2014 1, Docket Entry No. 5-5), which was denied, People v. Wilson, 24 N.Y.3d 966 (2014).

d. October 2020 Decision

On November 2, 2015, Petitioner filed a petition for a writ of habeas corpus with the Court. (Pet. 13.) Petitioner raised five claims, essentially identical to the claims he raised before the Appellate Division in his direct appeal. (Id. at 1, 4-12.) The Court's October 2020 Decision denied Petitioner's habeas petition, stating inter alia, that “[t]he Appellate Division expressly refused to review [Petitioner's no-adverse-inference] claim because of defense counsel's failure to adequately preserve the issue for appeal by lodging a contemporaneous objection with the Trial Court” and that “this independent and adequate state law ground bars federal habeas review of th[e] claim.” (October 2020 Decision 51 (citing Wilson, 981 N.Y.S.2d at 813).)

II. Discussion

a. Standards of review

i. Rule 60(b)

Rule 60(b) of the Federal Rules of Civil Procedure provides for relief from a final judgment, order, or proceeding in the case of:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief.

Fed. R. Civ. P. 60(b); Banister v. Davis, 590 U.S. ___, ___, 140 S.Ct. 1698, 1709 n.7 (2020) (quoting Fed.R.Civ.P. 60(b)). “Rule 60(b) strikes a balance between serving the ends of justice and preserving the finality of judgments.” Tapper v. Hearn, 833 F.3d 166, 170 (2d Cir. 2016) (quoting Nemaizer v. Baker, 793 F.2d 58, 61 (2d Cir. 1986)). While such motions must be brought “within a reasonable time, ” Santander Bank, N.A. v. Harrison, ___ Fed.Appx. ___, ___, 2021 WL 2201120, at *2 (2d Cir. June 1, 2021) (quoting Fed.R.Civ.P. 60(c)(1)), “[t]he one-year limitation period for Rule 60(b)[(1)-(3)] motions is absolute, ” Wang v. Int'l Bus. Machines Corp., 839 Fed.Appx. 643, 646 (2d Cir. 2021) (second alteration in original) (quoting Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemp. Dance, Inc., 466 F.3d 97, 100 (2d Cir. 2006)); see also Muller v. Lee, No. 13-CV-775, 2021 WL 199284, at *3 (N.D.N.Y. Jan. 20, 2021) (noting that the petitioner's Rule 60(b) motion was untimely where he “waited four years and three months to file th[e] motion from the time his habeas petition was denied and dismissed”). “[A] Rule 60(b) motion is properly denied where it seeks only to relitigate issues already decided.” Pastor v. P'ship for Children's Rts., ___ Fed.Appx. ___, ___, 2021 WL 1731804, at *1 (2d Cir. May 3, 2021) (citing Zerman v. Jacobs, 751 F.2d 82, 85 (2d Cir. 1984)); see also D'Angelo v. State Farm Fire & Cas. Co., 201 F.3d 430, 430 (2d Cir. 1999) (“Rule 60(b) is not a substitute for appeal and may not be used to relitigate the merits of a case.” (citing Competex, S.A. v. Labow, 783 F.2d 333, 335 (2d Cir. 1986))).

Each of the first five subsections of Rule 60(b) addresses a particular circumstance under which a party can obtain relief from a final judgment. See Dugan v. United States No. 11-CV-3973, 2015 WL 5244341, at *3 (E.D.N.Y. Sept. 8, 2015). Under Rule 60(b)(1) “a district court may correct its own mistakes that are ‘of a substantive legal nature,' and ‘its own mistakes of fact.'” Castro v. Bank of N.Y. Mellon as Trus. for Certificate Holders of CWalt Inc., Alt. Loan Tr. 2006-0A11 Mortgage Pass Through Certificates, Series 2006-OA11, ___ Fed.Appx. ___, ___, 2021 WL 1207904, at *2 (2d Cir. Mar. 31, 2021) (alteration omitted) (first quoting Int'l Controls Corp. v. Vesco, 556 F.2d 665, 670 (2d Cir. 1977); and then quoting Gey Assocs. Gen. P 'ship v. 310 Assocs. (In re 310 Assocs.), 346 F.3d 31, 35 (2d Cir. 2003)). “[T]he general rule [is] t...