10-3353-pr
Green v. Walsh
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 29th day of February, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 RALPH K. WINTER,
10 REENA RAGGI,
11 Circuit Judges.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 Jamal Green,
15 Petitioner-Appellant,
16
17 -v.- 10-3353-pr
18
19 James Walsh, Superintendent,
20 Respondent-Appellee.
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22
23 FOR PETITIONER-APPELLANT: Sally Wasserman, New York, NY.
24
25 FOR RESPONDENT-APPELLEE: Leilani Rodriguez, Assistant
26 Solicitor General, New York, NY
27 (Eric T. Schneiderman, Attorney
28 General of the State of New
29 York; Barbara Underwood,
30 Solicitor General; and Roseann
31 B. MacKechnie, Deputy Solicitor
32 General for Criminal Matters, on
33 the brief).
1
1
2 Appeal from a judgment of the United States District
3 Court for the Eastern District of New York (Dearie, J.).
4
5 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
6 AND DECREED that the judgment of the District Court is
7 AFFIRMED.
8
9 Petitioner-Appellant Jamal Green appeals the District
10 Court’s decision denying his motion to vacate an earlier
11 judgment, which denied his petition for habeas corpus. We
12 assume the parties’ familiarity with the underlying facts,
13 the procedural history of the case, and the issues on
14 appeal.
15 Green brought his motion to vacate under Rule 60(b)(5)
16 of the Federal Rules of Civil Procedure, which provides: “On
17 motion and just terms, the court may relieve a party . . .
18 from a final judgment, order, or proceeding” if, inter alia,
19 “(5) the judgment . . . is based on an earlier judgment that
20 has been reversed or vacated . . . .”
21 We review the denial of a Rule 60(b) motion for abuse
22 of discretion. Branum v. Clark, 927 F.2d 698, 704 (2d Cir.
23 1991) (citing Browder v. Dir., Dep’t of Corr. of Ill., 434
24 U.S. 257, 263 n.7 (1978)). Our review is “limited,”
2
1 however, Gonzalez v. Crosby, 545 U.S. 524, 535 (2005), and
2 we look at “only the denial of the motion and not the merits
3 of the underlying judgment for errors that could have been
4 asserted on direct appeal.” Branum, 927 F.2d at 704 (citing
5 Browder, 434 U.S. at 263 n.7). Green has not shown that the
6 district court abused its discretion.
7 Green’s initial habeas petition challenged his state
8 conviction. He contends that the state judgment was vacated
9 when his original sentence was vacated and his case remanded
10 for an evidentiary hearing. Even if this were so, Rule
11 60(b)(5) did not compel the district court to provide
12 relief. Green’s motion provided no explanation as to what
13 permissible grounds for habeas relief he would raise if the
14 district court’s earlier judgment (denying his habeas
15 petition) were vacated. Absent that, Green has failed to
16 present a motion raising “just terms” for relief, Fed. R.
17 Civ. P. 60(b), to demonstrate how the district court abused
18 its discretion, or to establish that the new habeas
19 proceeding he seeks would raise any new issues that have not
20 already been considered and rejected by the district court,
21 see 28 U.S.C. § 2254(d) (identifying limited bases upon
22 which a state prisoner can obtain habeas relief).
23 Moreover, Green has not shown how the district court’s
24 initial decision denying Green’s habeas petition was “based
3
1 on” the earlier state judgment. Fed. R. Civ. P. 60(b)(5).
2 Green had collaterally attacked that judgment via habeas,
3 and the district court rejected that challenge.
4 Finally, Green has forfeited any argument that the
5 district court should have sua sponte construed his Rule
6 60(b) motion as a new habeas petition by presenting that
7 argument for the first time in his reply brief. See Conn.
8 Bar Ass’n v. United States, 620 F.3d 81, 91 n.13 (2d Cir.
9 2010). In any event, we cannot conclude that the district
10 court was required to construe the motion as such when Green
11 provided no basis to believe that a new habeas proceeding
12 would afford him relief.
13
14 We have considered all of Green’s additional arguments
15 and find them to be without merit. Accordingly, the
16 judgment of the District Court is AFFIRMED.
17
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
21
4