Tarascio v. United States

198 F.R.D. 321, 2000 U.S. Dist. LEXIS 20256, 2000 WL 1910641
CourtDistrict Court, D. Connecticut
DecidedDecember 20, 2000
DocketNos. CRIM. 2:89CR00049 (JAC), CIV. 3:96CV02381 (AWT)
StatusPublished

This text of 198 F.R.D. 321 (Tarascio v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tarascio v. United States, 198 F.R.D. 321, 2000 U.S. Dist. LEXIS 20256, 2000 WL 1910641 (D. Conn. 2000).

Opinion

RULING ON 60(b) MOTION

THOMPSON, District Judge.

Petitioner Thomas Tarascio’s motion, brought pursuant to Federal Rule of Civil Procedure 60(b), to vacate the judgment entered against him with respect to his Motion to Vacate, Set Aside, and/or Correct his Sentence pursuant to 28 U.S.C. § 2255, is being denied for the reasons set forth below.

As an initial matter, the court notes that the petitioner has chosen to raise his arguments in the form of a Rule 60(b) motion, as opposed to in the form of a second habeas petition pursuant to 28 U.S.C. § 2255. If Taraseio had wished to bring a second habeas petition directly challenging his conviction on the merits, he would have been required to seek the approval of the court of appeals before the petition could be filed with the district court. See 28 U.S.C. § 2244(b)(3); Liriano v. U.S., 95 F.3d 119, 123 (2d Cir.1996)(district court required to transfer successive habeas petition to the court of appeals for certification before proceeding).

Taraseio’s habeas petition was premised entirely on his claim that the grand jury which indicted him was selected from a panel which unconstitutionally excluded individuals who are members of ethnic minority groups. The court denied the petition, finding that the issue concerning the grand jury pool should have been raised before trial, and that Taraseio had failed to show cause for his failure to timely raise this claim and also failed to show prejudice from the alleged violation of his constitutional rights. The same counsel, Attorney John Williams, represented Taraseio in his criminal trial, the appeal of his conviction, and his habeas proceeding. Taraseio now raises the following claims: (1) ineffective assistance of counsel, in that his counsel failed to timely raise the claim concerning the grand jury selection pool; (2) counsel’s failure to make a “strenuous effort to get Taraseio to engage in plea bargaining” before trial (Doc. # 151, p. 10); (3) non-compliance by the sentencing court with Section 6A1.3(b) of the United States Sentencing Guidelines; and (4) error by the court in attributing to Taraseio five kilograms of cocaine for purposes of sentencing. In the context of this Rule 60(b) motion, however, Taraseio is limited to arguing that these claims were not considered in connection with his habeas petition, and thus, for a reason or reasons set forth in Rule 60(b), the judgment on the habeas petition should be vacated.

Rule 60(b) reads, in relevant part, as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such [323]*323terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.

Fed. R. Civ. Pro. 60(b). In his reply memorandum [Doc. # 157], the petitioner asserts that he is entitled to relief under Rule 60(b)(4), or alternatively, under Rule 60(b)(6). However, Tarascio’s arguments are more properly considered under Rule 60(b)(1).

The first and second claims now raised by Tarascio, i.e. counsel’s failure to timely raise the claim concerning the grand jury and counsel’s failure concerning plea bargaining, are premised on claimed failures by the same attorney who represented Tarascio at trial and at sentencing, on the appeal of the conviction and the sentencing, in connection with his habeas petition, and on the appeal of the denial of that habeas petition. It is understandable, then, that Tarascio failed to raise those claims while he was represented by that attorney. In substance, however, he is now contending that the failure on his part to raise these arguments during the proceedings on his habeas petition was excusable neglect. See Nemaizer v. Baker, 793 F.2d 58, 62 (2d Cir.1986)(“Relief from counsel’s error is normally sought pursuant to 60(b)(1) on the theory that such error constitutes mistake, inadvertence or excusable neglect.’’); Israel v. Carpenter, 120 F.3d 361, 365 (2d Cir.l997)(quoting Nemaizer).

The third and fourth claims now raised by Tarascio, i.e. those related to Sentencing Guidelines § 6A1.3(b) and to the amount of drugs attributed to Tarascio at sentencing, are claims of which Tarascio and his counsel were or should have been aware during the proceedings in the district court on the habeas petition. Thus the failure to raise these arguments was, at best, mistake or inadvertence. The alternative is that this failure was “inexcusable neglect”, or gross negligence, in which case Tarascio is not entitled to relief under Rule 60(b)(1). See Carcello v. TJX Companies, Inc., 192 F.R.D. 61, 63 (D.Conn.2000)(“[G]ross negligence on the part of counsel does not fall within the scope of excusable neglect as defined by Rule 60(b)(1).”).

The petitioner claims that the instant motion is brought pursuant to Rule 60(b)(6). However, the court “may treat a motion to vacate a prior judgment as having been made under 60(b)(6) only if the other, more specific grounds for relief encompassed by the rule are inapplicable.” Maduakolam v. Columbia Univ., 866 F.2d 53, 55 (2d Cir.1989). See also Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)(Rule 60(b)(6) offers relief only where the motion is “not premised on one of the grounds for relief enumerated in clauses (b)(1) through (b)(5).”); PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 898 (2d Cir.l983)(“Rule 60(b)(6) is a broadly drafted ‘umbrella provision’, which must be read in conjunction with the other sections of that Rule, and is applicable only where the more specific provisions do not apply.”). In this case, the petitioner’s claim is one to which clause (b)(1) applies; thus, clause (b)(6) can not apply.1

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Bluebook (online)
198 F.R.D. 321, 2000 U.S. Dist. LEXIS 20256, 2000 WL 1910641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tarascio-v-united-states-ctd-2000.