Holmes v. LaManna

UNITED STATES DISTRICT COURT                                              
EASTERN DISTRICT OF NEW YORK                                                                              
--------------------------------------------------------------- X         
                                  :                                      
TREMAINE HOLMES,                                                          
                                  :                                      
                     Petitioner,                                         
                                  :  MEMORANDUM DECISION AND             
                                    ORDER                                
             – against –          :                                      
                                    20-CV-2769 (AMD)                     
                                  :                                      
SUPERINTENDANT MARK MILLER,                                               
                                  :                                      
                     Respondent.                                         
                                  :                                      
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ANN M. DONNELLY, United States District Judge:                            

    Before the Court is the pro se petitioner’s motion to vacate the order denying his petition 

for habeas corpus.  (ECF No. 14.)                                         

                         BACKGROUND                                      

    I assume the parties’ familiarity with the facts and the record of the prior proceedings and 

incorporate them from my prior order.  (ECF No. 12.)   I summarize the facts only to the extent 
necessary to decide the petitioner’s Rule 60(b) motion .                  
    The petitioner was arrested and charged with murder, attempted murder, criminal 
possession of a weapon in the second degree, attempted assault in the first degree and assault in 
the second degree.  (ECF No. 8 at 2.)  On December 1, 2015, the petitioner went to trial before 
the Honorable Vincent Del Giudice and a jury.  (ECF No. 8-1 at 263).  The trial court admitted 
the victim’s autopsy report as a business record and permitted Dr. Stahl-Herz of the Office of 
Chief Medical Examiner, who did not conduct the autopsy, to testify about the findings in the 
autopsy report.  (State Court Record (“SCR”) at 299-300.)  Defense counsel objected to the 
doctor’s testimony on hearsay grounds, citing Crawford v. Washington.1  (Id. at 301.)   
    The petitioner, represented by counsel, did not raise a Confrontation Clause claim on 
direct appeal to the Appellate Division, Second Department,2 (ECF No. 8-2,) and the Appellate 

Division unanimously affirmed the conviction.  People v. Holmes, 167 A.D.3d 1039 (2d Dep’t 
2018).  On March 25, 2019, the Court of Appeals denied the petitioner’s application for leave to 
appeal.  People v. Holmes, 33 N.Y.3d 949 (2019).                          
    On June 23, 2020, the petitioner filed this petition under 28 U.S.C. § 2254, raising the 
same claims that he raised on appeal.  In 2021, while the petition was pending, the Second 
Circuit decided Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021) cert. denied, 142 S. Ct. 1189 (2022), 
in which it held that “[e]ven if a forensic report contains only ‘a contemporaneous, objective 
account of observable facts’ that does not accuse a defendant [] it is testimonial and the 
Confrontation Clause requires that the defendant be afforded the opportunity to cross-examine 
the declarant.”  Id. at 135 (quoting People v. John, 27 N.Y.3d 294, 315 (2016)) (citing Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 318-21 (2009)).  The court rejected the First Department’s 
ruling that Garlick’s right of confrontation was not violated because the report “did not link the 
commission of the crime to a particular person and therefore was not testimonial” as 
contradicting clearly established Supreme Court precedent in Melendez-Diaz v. Massachusetts.  



1 The Confrontation Clause bars testimonial out-of-court statements unless the declarant is unavailable 
and defendant had prior opportunity to cross-examine the declarant.  Crawford v. Washington, 541 U.S. 
36 (2004).                                                               
2 As discussed in my prior order, the defendant argued that the prosecutor improperly vouched for the 
witness’s credibility, and that the court should have given an expanded identification charge.  (ECF No. 
1 at 1-2.)                                                               
Id. at 127 (quotations and citations omitted).  In addition, the Second Circuit found that the state 
law precedent3 upon which the First Division relied was inconsistent with Melendez-Diaz. 
    On May 17, 2022, I denied the petition in its entirety.  (ECF No. 12.)  Two months later, 
on July 18th, the petitioner moved for reconsideration pursuant to Federal Rule 60(b) of Civil 

Procedure.  He argues that the Second Circuit’s decision in Garlick warrants reconsideration of 
his habeas petition.  In the alternative, the petitioner asks to stay this action so that he may 
exhaust his Confrontation Clause claim in state court.  (ECF No. 14.)     
                       LEGAL STANDARD                                    
    Rule 60(b) of the Federal Rules of Civil Procedure permits district courts to relieve 
parties from judgments and orders under specific circumstances.  Fed. R. Civ. P. 60(b).  
Although Rule 60(b) applies to habeas proceedings, a petitioner cannot use it “to avoid the 
restriction on second or successive habeas corpus petitions,” and district courts have “the 
obligation to characterize the request for relief properly, regardless of the label that the petitioner 

applies.”  Dent v. United States, No. 09-CV-1938, 2013 WL 2302044, at *2 (E.D.N.Y. May 24, 
2013) (citing Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005)).           
    “A Rule 60(b) motion has a ‘different objective[]’ than a habeas petition.”  Carbone v. 
Cunningham, 857 F. Supp. 2d 486, 488 (S.D.N.Y. 2012) (quoting Rodriguez v. Mitchell, 252 
F.3d 191, 198 (2d Cir. 2001)).  Specifically, habeas “petitions seek to invalidate an underlying 
criminal conviction, whereas Rule 60(b) motions only seek to vacate a judgment, such as a 
judgment dismissing a habeas petition.”  Ackridge v. Barkley, No. 06-CV-3891, 2008 WL 
4555251, at *5 (S.D.N.Y. Oct. 7, 2008) (citation omitted).  “A motion that ‘seeks to add a new 
ground for relief’ or that ‘attacks the federal court’s previous resolution of a claim on the merits’ 

3 People v. Freycinet, 11 N.Y.3d 38 (2008), and its progeny, People v. John, 27 N.Y.3d 294 (2016), 
and People v. Acevedo, 112 A.D.3d 454 (N.Y. App. Div. 1st Dep’t 2013).   
can only be raised in a successive habeas petition . . .”  United States v. Spigelman, No. 05-CR-
960, 2017 WL 2275022, at *3 (S.D.N.Y. May 24, 2017) (quoting Gonzalez, 545 U.S. at 532) 
(emphasis omitted).  By contrast, a Rule 60(b) motion is a vehicle to identify “some defect in the 
integrity of the federal habeas proceedings.”  Id.   Examples of proper Rule 60(b) motions 

include arguments that a district court erroneously avoided deciding the merits of a claim for 
reasons such as “failure to exhaust, procedural default, or statute-of-limitations bar.”  Gonzalez, 
545 U.S. at 532 n.4.  When a Rule 60(b) motion instead asserts a “federal basis for relief from a 
state court’s conviction, it is ‘in substance a successive habeas petition and should be treated 
accordingly.’”  Hamilton v. Lee, 188 F. Supp. 3d 221, 239 (E.D.N.Y. 2016) (quoting Gonzalez, 
545 U.S. at 531).                                                         
    “Under the Antiterrorism and Effective Death Penalty Act (‘AEDPA’), successive federal 
habeas petitions requesting relief from a conviction in state court must satisfy strict requirements 
before a district court can adjudicate them on the merits.”  Hamilton, 188 F. Supp. 3d at 239 
(citing 28 U.S.C. § 2244(b)).  Specifically, before a district court may even entertain a successive 

habeas petition, the Second Circuit must certify that the petition (1) does not raise a “claim that 
has already been adjudicated in a previous petition” and (2) that it “relies on either a new and 
retroactive rule of constitutional law or new facts showing a high probability of actual 
innocence.”  Gonzalez, 545 U.S. at 529-30 (citing 28 U.S.C. §§ 2244(b)(1)-(2)).  “Absent 
authorization from the Second Circuit,” district courts “lack[] jurisdiction to consider a 
successive habeas petition.”  Sterling v. Kuhlman, No. 97-CV-2825, 2006 WL 177404, at *2 
(S.D.N.Y. Jan. 25, 2006) (citing Torres v. Senkowski, 316 F.3d 147, 149 (2d Cir. 2003)). 
                          DISCUSSION                                     
    The Clerk entered judgment dismissing the petitioner’s habeas petition on May 18, 2022.  
The petitioner’s filed his Rule 60(b) motion two months later.  In this district, motions for 
reconsideration are governed by Local Civil Rule 6.3, which requires a motion for 
reconsideration to be served within 14 days after the entry of judgment.  The petitioner asks that 
the Court “waive[]” the timeliness requirement, because of “institutional movement” at the 
correctional facility and because he had no access to the law library.  Even ignoring Rule 60(b)’s 

timeliness provisions, I must deny the motion for reconsideration.        
    In claiming that Dr. Stahl-Herz’s testimony violated the Confrontation Clause, the 
petitioner is challenging his state court conviction.  Even if I construe the petitioner’s claim as an 
ineffective assistance of appellate counsel claim based on counsel’s failure to challenge the 
doctor’s testimony on direct appeal, the motion must be denied, because the petitioner is not 
casting doubt on the integrity of the federal habeas proceeding.  See, e.g., United States v. Al-
Khabbaz, No. 04-CR-1379, 2017 WL 7693368, at *2 (S.D.N.Y. Dec. 18, 2017) (“Defendant 
raised four different reasons why his attorneys were ineffective [in his initial petition].  Thus, 
Defendant is not challenging the integrity of his first habeas proceeding because his present 
ground for relief—counsel’s supposed failure to advise him of the risks of deportation—was 

never raised in that first proceeding.”); James v. United States, 603 F. Supp. 2d 472, 482 
(E.D.N.Y. 2009) (“[A]llegations of ineffective assistance of . . . counsel attack the underlying 
conviction rather than the integrity of the habeas proceedings.”) (citation omitted); Barnes v. 
Burge, No. 03-CV-1475, 2009 WL 612323, at *2 (E.D.N.Y. Mar. 9, 2009) (converting Rule 
60(b) motion into successive habeas petition where petitioner previously claimed ineffective 
assistance of counsel on one ground but later filed a Rule 60(b) motion alleging two other 
grounds); Abu Mezer v. United States, No. 01-CV-2525, 2005 WL 1861173, at *2 (E.D.N.Y. 
July 27, 2005) (Rule 60(b) motion improper because “it seeks to attack the underlying criminal 
conviction (based on . . . ineffective . . . counsel) rather than the integrity of the original habeas 
proceeding”).  The petitioner’s habeas petition was premised on entirely different grounds: that 
the prosecutor improperly vouched for a witness’s credibility, and that the court should have 
given an expanded identification charge.  (ECF No. 1 at 1-2.)  Thus, the petitioner’s motion is a 
successive habeas petition and must be denied as outside the scope of Rule 60(b). 

    When presented with a successive habeas petition styled as a Rule 60(b) motion, the 
district court has “two procedural options: (i) the court may treat the Rule 60(b) motion as ‘a 
second or successive’ habeas petition, in which case it should be transferred to [the Second 
Circuit] for possible certification, or (ii) the court may simply deny the portion of the motion 
attacking the underlying conviction ‘as beyond the scope of Rule 60(b).’”  Harris v. United 
States, 367 F.3d 74, 82 (2d Cir. 2004) (citation omitted).                
    Because it does not appear that the petitioner has exhausted his state court remedies on 
his Confrontation Clause claim, I deny the motion as beyond the scope of Rule 60(b) rather than 
transfer it to the Second Circuit.  See Davis v. New York, No. 07-CV-9265, 2017 WL 5157458, at 
*3 (S.D.N.Y. Nov. 6, 2017) (“The Second Circuit suggests that a district court should give a 

prisoner notice before transferring a Rule 60(b) motion to the Court of Appeals as a second or 
successive habeas petition in order that the prisoner be given an opportunity to withdraw or 
restyle the motion.”) (citations omitted).  Nothing in this decision precludes the petitioner from 
seeking relief in state court on the claim that his right of confrontation was violated by the 
introduction of the autopsy report through Dr. Stahl-Hertz.               
                          CONCLUSION                                     
    For the foregoing reasons, the petitioner’s Rule 60(b) motion is denied. 

SO ORDERED.                                                               
                                    s/Ann M. Donnelly                    
                                  ___________________________            
                                  ANN M. DONNELLY                        
                                  United States District Judge           
Dated: Brooklyn, New York                                                 
    March 30, 2023