Stevens v. Miller, No. 11-5343 (2d Cir. 2012)
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Petitioner was convicted of Robbery in the Third Degree. The State subsequently appealed from an order of the district court denying the State's motion under Rule 60(b)(6) to vacate the district court's grant of habeas relief to petitioner more than a year earlier. The court found that the State's motion was nothing more than an attempted end-run around the one year time limitation on a Rule 60(b)(1) motion, which allowed the district court to relieve a party from a final judgment or order for mistake, inadvertence, surprise, or excusable neglect. Therefore, the court held that the district court did not abuse its discretion in denying the State's Rule 60(b)(6) motion.
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11-5343-pr Stevens v. Miller 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: March 5, 2012 Decided: April 10, 2012) Docket No. 11-5343-pr EDWARD STEVENS, Petitioner-Appellee, v. DAVID MILLER, Superintendent, Eastern Correctional Facility, ERIC T. SCHNEIDERMAN, New York State Attorney General, Respondents-Appellants.* Before: McLAUGHLIN, B.D. PARKER, and WESLEY, Circuit Judges. Appeal from an order of the United States District Court for the Southern District of New York (Kaplan, J.), entered on December 23, 2011, which denied RespondentsAppellants motion under Federal Rule of Civil Procedure 60(b)(6) to vacate an order granting habeas relief to Petitioner-Appellee that was entered more than a year prior to the Respondent-Appellants Rule 60(b)(6) motion. We hold that the district court did not abuse its discretion in denying Respondents-Appellants Rule 60(b)(6) motion. Affirmed. * The Clerk of the Court is respectfully directed to amend the official caption to conform to the above. Page 1 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ALYSON GILL, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Roseanne B. MacKechnie, Deputy Solicitor General for Criminal Matters, Lisa Ellen Fleischmann, Assistant Attorney General, on the brief) for Eric T. Schneiderman, Attorney General for the State of New York, New York, NY, for Respondents-Appellants. RICHARD JOSELSON, Legal Aid Society, Criminal Appeals Bureau, New York, NY, for PetitionerAppellee. WESLEY, Circuit Judge: Respondents-Appellants (the State ) appeal from an 20 order of the United States District Court for the Southern 21 District of New York (Kaplan, J.), entered on December 23, 22 2011, which denied the State s motion under Federal Rule of 23 Civil Procedure 60(b)(6) to vacate the district court s 24 grant of habeas relief to Petitioner-Appellee Edward Stevens 25 more than a year earlier. 26 district court abused its discretion in denying its Rule 27 60(b)(6) motion. 28 more than an attempted end-run around the one year time 29 limitation on a Rule 60(b)(1) motion, which allows the 30 district court to relieve a party from a final judgment or 31 order for mistake, inadvertence, surprise, or excusable The State argues that the We find that the State s motion is nothing Page 2 of 23 1 neglect. 2 abuse its discretion in denying the State s Rule 60(b)(6) 3 motion. Therefore, we hold that the district court did not 4 5 6 I. Background A. Stevens s Conviction In early 2000, Edward Stevens was convicted of Robbery 7 in the Third Degree in violation of New York Penal Law § 8 160.05. 9 Div. 1st Dep t 2004). See People v. Stevens, 8 A.D.3d 2, 3 (N.Y. App. Although Robbery in the Third Degree 10 is ordinarily punishable by a maximum of seven years in 11 prison, the trial court determined that Stevens was a 12 persistent felony offender under New York law and sentenced 13 him to an indeterminate term of imprisonment of fifteen 14 years to life. 15 affirmed on direct appeal. 16 2 (N.Y. App. Div. 1st Dep t 2004), leave denied, 5 N.Y.3d 17 810 (2005). 18 B. Habeas Proceedings 19 Id. Stevens s conviction and sentence were See People v. Stevens, 8 A.D.3d Stevens commenced habeas proceedings in the district 20 court in December 2005. 21 a persistent felony offender and his resulting sentence was 22 contrary to, and an unreasonable application of, the United He claimed that his designation as Page 3 of 23 1 States Supreme Court s decisions in Apprendi v. New Jersey, 2 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 3 (2004). 4 31, 2008, Magistrate Judge Maas recommended that the 5 district court deny the petition. 6 In a report and recommendation issued on December By letter dated January 9, 2009, Stevens s counsel 7 informed the district court that the issue of whether New 8 York s persistent felony offender sentencing scheme violated 9 the Sixth Amendment was pending before a panel of this 10 Court. 11 the time to file objections to the magistrate judge s report 12 and recommendation until ten days after this Court s 13 decision. 14 Stevens s case to the suspense docket and instructed 15 Stevens s counsel to notify the court promptly upon 16 resolution of the [appeals pending before the Second Circuit 17 panel]. 18 As such, he requested that the district court extend A few days later, the district court transferred On March 31, 2010, a panel of this Court, in a number 19 of appeals consolidated under Besser v. Walsh, 601 F.3d 163 20 (2d Cir. 2010), declared New York s persistent felony 21 offender sentencing scheme unconstitutional. 22 Stevens s counsel informed the district court of Besser and Page 4 of 23 The next day, 1 urged the court to grant Stevens s habeas petition. 2 State responded by letter dated April 16, 2010. 3 letter, the State noted that a petition for rehearing en 4 banc was pending in Besser and asked that the court refrain 5 from relying on Besser until this Court rendered a decision 6 on the petition for rehearing. 7 was apparently never docketed, the district court 8 acknowledged receiving it. 9 The In that Although the State s letter This Court granted rehearing en banc on the issue of 10 whether New York s persistent felony offender sentencing 11 scheme contravened clearly established Supreme Court 12 precedent on April 30, 2010, but the State never informed 13 the district court of our decision to reconsider the panel s 14 opinion in Besser. 15 court relied on the Besser panel decision and granted 16 Stevens s habeas petition. 17 September 29, 2010. 18 judgment to Stevens s attorney but failed to provide the 19 State with notice. 20 docket sheet, as required by case law and the district 21 judge s individual practices, it was unaware of the order 22 granting Stevens habeas relief. On September 27, 2010, the district Judgment was entered on The Clerk s Office mailed notice of the Because the State failed to check the Page 5 of 23 1 Less than three weeks after the district court granted 2 habeas relief to Stevens, this Court, sitting en banc, 3 overruled Besser in Portalatin v. Graham, 624 F.3d 69 (2d 4 Cir. 2010).1 5 persistent felony offender sentencing scheme did not run 6 afoul of clearly established Supreme Court precedent. 7 at 78. 8 victory in Stevens s habeas proceeding. 9 State was surely aware of the Portalatin decision because In Portalatin, we held that New York s Id. Thus, Portalatin ensured the State of certain What s more, the 10 the Solicitor General of New York argued the case. 11 Nevertheless, the State did not apprise the district court 1 The change in name from Besser v. Walsh to Portalatin v. Graham stems from the Besser panel s varied disposition of the five appeals originally consolidated under the title Besser v. Walsh. While holding that New York s persistent felony offender sentencing scheme contravened clearly established Supreme Court precedent, the Besser panel actually affirmed the district court s denial of James Besser s habeas petition on the ground that Besser s conviction had become final before the Supreme Court s decision in Blakely. See Besser, 601 F.3d at 183. As such, we denied Besser s petition for rehearing en banc on June 4, 2010, and the mandate in his individual appeal issued on July 30, 2010. We granted en banc review in the other four appeals, and the Court ultimately issued the en banc decision under the title Portalatin v. Graham. For convenience, we sometimes refer to en banc review being granted in Besser. By that we mean that the en banc Court undertook to review the holding of the Besser panel decision namely, that New York s persistent felony offender sentencing scheme contravened clearly established Supreme Court precedent interpreting the Sixth Amendment. As noted above, we recognize that James Besser s petition for rehearing en banc was denied. Page 6 of 23 1 of the en banc decision. 2 checked the docket sheet to ascertain the status of 3 Stevens s petition, the State let its time to appeal expire. 4 On September 29, 2011, exactly one year after the entry And because the State never 5 of judgment granting Stevens habeas relief, Stevens s 6 counsel wrote a letter to an attorney in the New York State 7 Department of Corrections, enclosed a copy of the district 8 court s order granting Stevens s petition, and requested 9 Stevens s release. On October 12, 2011, the New York 10 Attorney General s Office became aware of the letter and of 11 the district court s order. 12 made a Rule 60(b)(6) motion to vacate the district court s 13 judgment granting Stevens habeas relief. 14 C. Rule 60(b) Proceedings 15 The following day, the State On October 18, 2011, the district court held a hearing 16 on the State s Rule 60(b)(6) motion. 17 State admitted its negligence in failing to check the docket 18 sheet and failing to apprise the district court of 19 Portalatin.2 20 entitled to Rule 60(b)(6) relief because extraordinary Time and again, the Nevertheless, the State contended that it was 2 The Assistant Attorney General who argued the motion before the district court was not the Assistant Attorney General who argued on appeal. Page 7 of 23 1 circumstances existed. 2 State noted that (1) the district court s order to release 3 Stevens was based on a panel decision of this Court that was 4 overruled less than three weeks after the entry of judgment 5 in this matter; (2) the mandate in the Besser panel decision 6 never issued;3 (3) Stevens s counsel never informed the 7 district court of Portalatin; and (4) the Clerk s Office 8 never provided the State notice of the district court s 9 decision. 10 In support of its argument, the Stevens s counsel countered that Rule 60(b)(6) relief 11 was inappropriate because the State s motion was not made 12 within a reasonable time following entry of judgment and 13 because Rule 60(b) cannot be used as a mere substitute for a 14 party s failure to appeal in a timely manner. 15 admitted that he delayed seeking Stevens s release until a 16 year had elapsed from the entry of the district court s 17 judgment so as to prevent the State from pursuing relief 3 He candidly As explained in footnote 1, the mandate disposing of James Besser s individual appeal issued on July 30, 2010. However, the mandates in the other appeals consolidated in Besser where the issue of whether New York s persistent felony offender sentencing scheme ran afoul of clearly established Supreme Court precedent was dispositive had not issued. When the State refers to the mandate in Besser not being issued, it means that Besser s holding regarding New York s persistent felony offender sentencing scheme was under review by the en banc Court. Page 8 of 23 1 under Rule 60(b)(1), which allows a district court to vacate 2 its judgment on the basis of the moving party s mistake, 3 inadvertence, surprise, or excusable neglect. 4 By memorandum and order filed on December 23, 2011, the 5 district court denied the State s motion. 6 that even if the State s neglect was excusable a premise 7 that the court clearly believed to be dubious at best the 8 proper avenue for relief was a Rule 60(b)(1) motion, which 9 was no longer available to the State because more than a The court found 10 year had passed. 11 60(b)(1) and 60(b)(6) are mutually exclusive, Rule 12 60(b)(6) relief was inappropriate. 13 district court determined that the State was not entitled to 14 Rule 60(b)(6) relief because the State s motion was not made 15 within a reasonable time, as required by Rule 60(c). 16 court concluded by noting that [t]he State s negligent 17 failures . . . have been egregious and that [f]air play 18 demands that the State be held responsible for its 19 extraordinary neglect. 20 on the force of its September 27, 2010 order. 21 22 The court also noted that because Rules In the alternative, the The It thus ordered Stevens s release The State now appeals the district court s denial of its Rule 60(b)(6) motion. Page 9 of 23 1 II. Discussion 2 The State claims that the district court abused its 3 discretion in denying its Rule 60(b)(6) motion. 4 primary argument on appeal is that the district court should 5 have granted its motion because Portalatin constituted a 6 supervening change in governing law that called into 7 question the correctness of the district court s judgment. 8 It also points to other circumstances it believes make this 9 case extraordinary. The State s The State asserts, among other 10 things, that it had no reason to suspect that the district 11 court would issue a ruling when it did, that the Clerk s 12 Office failed to provide the State notice of judgment, that 13 Stevens s counsel misled the district court, and that 14 comity concerns counsel in favor of granting the State s 15 motion. 16 charitable to the State, the State s motion is nothing more 17 than one premised on its own mistake, inadvertence, 18 surprise, and neglect in other words, an untimely Rule 19 60(b)(1) motion masquerading as a Rule 60(b)(6) motion. 20 district court did not abuse its discretion in denying the 21 State its requested relief. We find that, even when viewed in the light most 22 Page 10 of 23 The 1 2 3 4 A. Relief Under Federal Rule of Civil Procedure 60(b) Is Not Warranted 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (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 (whether previously called intrinsic or extrinsic), 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. All motions under Rule 60(b) must be made within a 23 reasonable time, and for a motion under subsection (1), (2), 24 or (3), no later than a year after the entry of judgment. 25 Fed. R. Civ. P. 60(c). 26 Federal Rule of Civil Procedure 60(b) provides: The decision whether to grant a party s Rule 60(b) 27 motion is committed to the sound discretion of the 28 district court, and appellate review is confined to 29 determining whether the district court abused that 30 discretion. 31 Corp.), 666 F.2d 754, 760 (2d Cir. 1981). 32 circumstances, though, may a party use a Rule 60(b) motion Montco, Inc. v. Barr (In re Emergency Beacon Page 11 of 23 In no 1 as a substitute for an appeal it failed to take in a timely 2 fashion. 3 176 (2d Cir. 2009). 4 See United Airlines, Inc. v. Brien, 588 F.3d 158, Rule 60(b)(6) authorizes a district court to grant 5 relief to a moving party for any other reason that 6 justifies relief. 7 power to do justice in a particular case. 8 LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) (internal quotation 9 marks omitted). It is a grand reservoir of equitable Matarese v. But that reservoir is not bottomless. 10 Recognizing Rule 60(b)(6) s potentially sweeping reach, 11 courts require the party seeking to avail itself of the Rule 12 to demonstrate that extraordinary circumstances warrant 13 relief. 14 486 U.S. 847, 864 (1988); Nemaizer v. Baker, 793 F.2d 58, 63 15 (2d Cir. 1986). 16 attempt to use Rule 60(b)(6) to circumvent the one-year time 17 limitation in other subsections of Rule 60(b). 18 Fidelity Bank, N.A. v. Gov t of Antigua & Barbuda Permanent 19 Mission, 877 F.2d 189, 196 (2d Cir. 1989). 20 See Liljeberg v. Health Servs. Acquisition Corp., Of particular concern is that parties may See First Recognizing this concern, we have found that Rule 21 60(b)(1) and Rule 60(b)(6) are mutually exclusive, such 22 that any conduct which generally falls under the former Page 12 of 23 1 cannot stand as a ground for relief under the latter. 2 United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976) 3 (internal quotation marks omitted); see also Liljeberg, 486 4 U.S. at 864 n. 11.; United States v. Erdoss, 440 F.2d 1221, 5 1223 (2d Cir. 1971). 6 premised on grounds fairly classified as mistake, 7 inadvertence, or neglect, relief under Rule 60(b)(6) is 8 foreclosed. See Klapprott v. United States, 335 U.S. 601, 9 614 (1949).4 For example, in Liljeberg v. Health Services Where a party s Rule 60(b) motion is 10 Acquisition Corp., 486 U.S. 847, 850 (1988), the Supreme 11 Court was tasked with determining whether relief under Rule 12 60(b)(6) was appropriate where a party learned of a judge s 13 conflict of interest 10 months after the Court of Appeals 14 affirmed the district court s judgment. 15 the circumstances warranted Rule 60(b)(6) relief and found 16 [o]f particular importance that the case did not involve 17 neglect or lack of due diligence on the part of the moving 18 party. The Court held that Id. at 864 n.11. 4 The Supreme Court has suggested, in dicta, that Rule 60(b)(6) relief is not available if the moving party is even partly to blame for the delay. Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 393 (1993). Stevens devotes a substantial portion of his brief to urging us to affirm the district court on this ground. Because we find that the State s motion can be fairly classified only as one premised on its own mistake, inadvertence, surprise, or excusable neglect, we have no occasion to consider whether such a categorical bar on the availability of a Rule 60(b)(6) motion is appropriate in all circumstances. Page 13 of 23 1 It is undeniable that the State s Rule 60(b)(6) motion 2 is, at bottom, premised on its own mistake, inadvertence, 3 and neglect. 4 Rule 60(b)(1) motion.5 5 significant. 6 petition for rehearing en banc had been filed in Besser, it 7 never informed the district court that this Court granted 8 the petition for rehearing. 9 check the docket sheet to ascertain whether the district 10 court had issued a decision on Stevens s habeas petition. 11 Finally, when this Court rendered its en banc decision in 12 Portalatin overruling the Besser panel decision, the State 13 failed to notify the district court. 14 significant because this Court issued Portalatin within the 15 State s time to appeal the district court s order. 16 State kept abreast of the district court s docket sheet, it 17 surely would have prevailed by either appealing or timely 18 seeking reconsideration from the district court. Simply put, it is nothing more than a late The State s failures were Although it notified the district court that a Further, the State failed to 5 This is all the more Had the The district court found that the State s neglect was not excusable. We assume that it is only for the sake of argument but recognize that the district court may have been well within its discretion in denying a timely Rule 60(b)(1) motion on these facts. The point is that even when we view the facts in a light most favorable to the State, the State s motion can only be properly viewed as one premised on mistake, inadvertence, surprise, or excusable neglect. Page 14 of 23 1 Importantly, at hearing before the district court on the 2 State s Rule 60(b)(6) motion, the State admitted that it was 3 negligent in failing to check the docket, noted that it 4 did make mistakes, and suggested that it was partly to 5 blame no fewer than five times. 6 B. The State s Arguments to the Contrary Are Unavailing 7 In its briefs, the State contends that the district 8 court abused its discretion in denying its Rule 60(b)(6) 9 motion for a number of reasons. It argues, among other 10 things, that (1) this Court s decision in Portalatin 11 constitutes a supervening change in law that warrants Rule 12 60(b)(6) relief; (2) the State had no reason to suspect that 13 the district court would rule on Stevens s habeas petition 14 when it did; (3) the Clerk s Office never informed the State 15 of the district court s judgment; (4) Stevens s counsel 16 misled the district court; and (5) comity concerns counsel 17 in favor of allowing the State recourse under Rule 60(b)(6). 18 We disagree. 19 The State s contention that Portalatin constitutes a 20 change in decisional law warranting relief under Rule 21 60(b)(6) is unavailing. 22 in decisional law rarely constitutes the extraordinary The State recognizes that a change Page 15 of 23 1 circumstances required to prevail on a Rule 60(b)(6) 2 motion. 3 (1997); Brien, 588 F.3d at 176. 4 seeks safe harbor in our decision in Sargent v. Columbia 5 Forest Products, Inc., 75 F.3d 86 (2d Cir. 1986). 6 See, e.g., Agostini v. Felton, 521 U.S. 203, 239 Nevertheless, the State The State s understanding of Sargent suffers from a 7 fatal defect it ignores the underlying facts. 8 not a Rule 60(b) case.6 9 Court s ability to recall its mandate based on a Sargent is Instead, Sargent concerned this 10 supervening change in governing law that calls into serious 11 question the correctness of the court s judgment. 12 75 F.3d at 90 (internal quotation marks and alteration 13 omitted). 14 Court s attention that a dispositive case was then pending 15 before the Vermont Supreme Court. The Court proceeded to 16 affirm the district court without the benefit of the Vermont 17 Supreme Court s decision. 18 petitioned for rehearing, the Court denied the petition. 19 About three months later, the Vermont Supreme Court decided 20 the issue in a contrary manner. Sargent, There, the plaintiff-appellant brought to the When the plaintiff-appellant Just prior to the Vermont 6 We do, of course, recognize that Sargent analogized the power to recall a mandate to the power conferred on district courts by Rule 60(b). See Sargent, 75 F.3d at 89. Page 16 of 23 1 Supreme Court s decision, the plaintiff-appellant filed a 2 petition for a writ of certiorari in the United States 3 Supreme Court, which was later denied. 4 that denial, the plaintiff-appellant moved this Court to 5 modify its mandate. Id. at 89. 6 Three weeks after The Sargent Court determined that modification of its 7 mandate was appropriate. It identified four factors that 8 should be considered when determining whether to recall a 9 mandate: (1) whether the governing law is unquestionably 10 inconsistent with the earlier decision; (2) whether the 11 movant brought to the Court s attention that a dispositive 12 decision was pending in another court; (3) whether there was 13 a substantial lapse in time between the issuing of the 14 mandate and the motion to recall the mandate; and (4) 15 whether the equities strongly favor relief. 16 The Court found that modification of the mandate was 17 warranted because all four factors weighed in the plaintiff- 18 appellant s favor. 19 Id. at 90. Even a cursory reading of the case demonstrates that it 20 is of no help to the State s position here. 21 recall of the mandate was the only recourse available to the 22 diligent appellant. In Sargent, She timely appealed, petitioned for a Page 17 of 23 1 rehearing, and filed a petition for a writ of certiorari in 2 short, she exhausted every avenue of potential relief from 3 the erroneous judgment. 4 It failed to notify the district court that this Court 5 granted en banc consideration of Besser, failed to check the 6 docket sheet to determine if the district court had rendered 7 a decision, and neglected to inform the district court of 8 this Court s decision in Portalatin, which was handed down 9 within the State s time to appeal the district court s Here, the State was not diligent. 10 order. 11 district court of Portalatin, it would have become aware of 12 the district court s order and either timely appealed or 13 filed a motion for reconsideration. 14 State s reliance on Sargent is unavailing.7 As such, had the State endeavored to apprise the For these reasons, the 15 7 Some district courts within the Circuit have employed Sargent to determine whether a change in governing law constitutes extraordinary circumstances under Rule 60(b)(6). See, e.g., Scott v. Gardner, 344 F. Supp. 2d 421, 426-27 (S.D.N.Y. 2004); Devino v. Duncan, 215 F. Supp. 2d 414, 417-19 (S.D.N.Y. 2002). However, we have found no Second Circuit case, and none has been cited to us, that has employed the framework in the context of a Rule 60(b)(6) motion. Though the State s reliance on Sargent is misplaced largely because of the magnitude of its neglect and its lack of diligence in this case, we recognize that in some cases Sargent s framework may be helpful in determining whether a change in decisional law, unaccompanied by the neglect on the part of a moving party that is present here, may constitute the extraordinary circumstances needed to warrant Rule 60(b)(6) relief. Page 18 of 23 1 Similarly unavailing is the State s reliance on the 2 fact that it never received notice from the Clerk s Office 3 of the district court s judgment and that, given the 4 considerable uncertainty of the law at the time, it did not 5 expect the district court to render a decision when it did. 6 We quickly dispatch with the latter objection. 7 failed to inform the district court that this Court had 8 granted rehearing in Besser and thus could not be assured 9 that the district court was aware that Besser was subject to The State 10 en banc review.8 11 court, it would have avoided the unfortunate situation it 12 now finds itself in. 13 not . . . neglect their duty to monitor the docket on the 14 basis of speculation as to the probable date of decision. Had the State so notified the district In any event, [c]ounsel should 8 As the State points out in its brief, Judge Kaplan authored the district court opinion denying James Besser s habeas petition. Notice of this Court s grant of en banc review in the four other appeals originally consolidated under Besser appeared on the district court s docket sheet for James Besser on May 14, 2010. The State faults Judge Kaplan for granting Stevens s habeas petition based on a [Second Circuit] panel decision . . . that it should have know was the subject of en banc review. State Br. 18. Regardless of whether Judge Kaplan should have known that the Besser panel decision was being reviewed by the en banc Court either because of the entries on James Besser s docket sheet or because the matter was subject to public reporting the State would have avoided all of the issues it now confronts had it simply acted in a diligent and reasonable manner. We thus are not convinced by the State s attempts to lay blame that properly belongs to it at the feet of others. Page 19 of 23 1 See Hassett v. Far West Fed. Sav. and Loan Ass n (In re 2 O.P.M. Leasing Servs., Inc.), 769 F.2d 911, 916 (2d Cir. 3 1985). 4 Nor does the Clerk s failure to provide the State 5 notice of the judgment rescue the State s Rule 60(b)(6) 6 motion. 7 Rule of Civil Procedure 77(d)(1) requires the Clerk to serve 8 notice of the entry of an order or judgment on the parties. 9 But the very next subsection of the Rule provides that It is true, as the State points out, that Federal 10 [l]ack of notice of the entry does not affect the time for 11 appeal or relieve or authorize the court to relieve a party 12 for failing to appeal within the time allowed. 13 Civ. P. 77(d)(2). 14 entry of judgment does not constitute extraordinary 15 circumstances warranting Rule 60(b)(6) relief. 16 has made clear that the parties have an obligation to 17 monitor the docket sheet to inform themselves of the entry 18 of orders they wish to appeal. 19 McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001). 20 Fed. R. It follows that lack of notice of the This Court United States ex rel. We also reject the State s contention that the length 21 of time it took it to file a Rule 60(b) motion should be 22 excused because Stevens s counsel misled the district Page 20 of 23 1 court on two occasions. 2 for informing the district court that it was bound by the 3 panel decision in Besser and for failing to notify the 4 district court that the en banc petition in Besser had been 5 granted even though the district court directed Stevens s 6 counsel to notify the Court promptly upon the resolution of 7 the noted appeals when it transferred Stevens s case to the 8 suspense docket. 9 tactical decision to wait over a year before seeking to The State faults Stevens s counsel Although Stevens s counsel made the 10 enforce the district court s September 2010 order granting 11 Stevens s habeas petition, Stevens s counsel did not mislead 12 the district court. 13 recognized,9 the district court was hardly duped by 14 Stevens s counsel into believing that the mandate in Besser 15 had issued. 16 2010, informed the district court that the mandate had yet 17 to issue and that an en banc petition was pending. 18 the district court s direction to Stevens s counsel to 19 notify the court of the outcome of the noted appeals, it 20 is clear from the context of the order that the district First, as the district court Indeed, the State, by letter dated April 16, 9 As to At the hearing on the State s Rule 60(b)(6) motion, the district court characterized the State s argument on this score as silly. We agree. Page 21 of 23 1 court had in mind the outcome of the consolidated appeals 2 before the Besser panel, not a continuing obligation to 3 inform the district court of each development subsequent to 4 the panel rendering a decision. 5 court understood its own order as such. 6 Significantly, the district Finally, we reject the State s claim that comity 7 concerns counsel in favor of allowing the State recourse to 8 Rule 60(b)(6) relief. 9 interest in assuring that constitutionally valid state court To be sure, [t]he state has a strong 10 judgments are not set aside and can be carried out without 11 undue delay. 12 Cir. 1987). 13 interests, however, comity concerns have considerably less 14 force. 15 Stevens s sentence would not have been set aside by the 16 federal courts. 17 manner. 18 comity concerns that find their genesis in its own neglect 19 and failure to litigate Stevens s habeas petition with due 20 diligence. Ritter v. Smith, 811 F.2d 1398, 1403 (11th Where the State does not diligently protect its Had the State behaved in a reasonable manner, But it did not behave in a reasonable The State should not now be heard to complain of 21 22 Page 22 of 23 1 2 III. Conclusion We find that the district court did not abuse its 3 discretion in denying the State s Rule 60(b)(6) motion. 4 Accordingly, the district court s order of December 23, 2011 5 is hereby AFFIRMED. Stevens s pro se motion dated March 16, 6 2012 requesting immediate release from custody is moot 7 because Stevens has been released. Page 23 of 23
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