     09-2634-cv
     Aponte v. City of N.Y. Dep’t of Corr.


                          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 17 th day of May, two thousand ten.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                JOSEPH M. McLAUGHLIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       Daniel Aponte,
14                Plaintiff-Appellant,
15
16                    -v.-                                         09-2634-cv
17
18       City of New York Department of
19       Corrections et al.,
20                Defendants-Appellees.
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                  Daniel Aponte, pro se, Effort, PA.
24
25       FOR APPELLEE:                   Larry A. Sonnenshein, The City of
26                                       New York, Law Department, New York,
27                                       NY.
28

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1         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
2    AND DECREED that the order of the district court be
3    AFFIRMED, and the motion to recall our mandate in the appeal
4    docketed under 98-9067-cv be DENIED.

 5        Plaintiff-Appellant Daniel Aponte, pro se, appeals from
 6   the order of the United States District Court for the
 7   Southern District of New York (Rakoff, J.), denying
 8   Appellant’s motion for reconsideration, pursuant to Fed. R.
 9   Civ. P. 60(b). We assume the parties’ familiarity with the
10   facts and procedural history.

11        Rule 60(b)(2) provides, in relevant part, that a motion
12   for relief from a judgment or order may be granted based on
13   “newly discovered evidence that, with reasonable diligence,
14   could not have been discovered in time to move for a new
15   trial under Rule 59(b).” We review a district court order
16   denying a Rule 60(b) motion for abuse of discretion. See
17   Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724,
18   729 (2d Cir. 1998). Relief pursuant to Rule 60(b) is
19   available only in “exceptional circumstances.” Ruotolo v.
20   City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal
21   quotation marks omitted). “A district court would
22   necessarily abuse its discretion if it based its ruling on
23   an erroneous view of the law or on a clearly erroneous
24   assessment of the evidence.” Transaero, 162 F.3d at 729
25   (internal quotation marks omitted). The district court did
26   not abuse its discretion by denying Appellant’s Rule 60(b)
27   motion for reconsideration because it was premised on the
28   legal malpractice of counsel and not the merits of the
29   underlying litigation. Likewise, the additional evidence
30   referenced by Appellant was in support of his claim of legal
31   malpractice. See Boule v. Hutton, 328 F.3d 84, 95 (2d Cir.
32   2003) (“Rule 60(b)(2) provides relief when the movant
33   presents newly discovered evidence that could not have been
34   discovered earlier and that is relevant to the merits of the
35   litigation.”); see also Fed. R. Civ. P. 60(c)(1) (a motion
36   for Rule 60(b)(2) relief must be made “no more than a year
37   after the entry of judgment”).

38        Appellant requests that we “reopen” his appeal docketed
39   under 98-9067-cv. We construe this request as a motion to
40   recall our mandate and to reinstate his appeal. Our “power
41   to recall a mandate is unquestioned.” Sargent v. Columbia
42   Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996).
43   “However, this power is to be exercised sparingly . . . and
44   reserved for exceptional circumstances.” Id. (citations and

                                  2
 1   internal quotation marks omitted). “‘The sparing use of the
 2   power demonstrates it is one of last resort, to be held in
 3   reserve against grave, unforeseen contingencies.’” British
 4   Int’l Ins. Co. v. Seguros la Republica, S.A., 354 F.3d 120,
 5   123 (2d Cir. 2003) (quoting Calderon v. Thompson, 523 U.S.
 6   538, 549–50 (1998)). Appellant fails to make any such
 7   showing. The only explanation he offers for waiting almost
 8   ten years to raise these claims is that he only “recently”
 9   received this Court’s decision in an “anonymous package,”
10   but concedes later in his brief that, in 2000, his counsel
11   had informed him that his appeal, docketed under 09-9067-cv,
12   had been decided. No argument is made as to why this Court
13   should recall the mandate other than to request that we
14   reopen the appeal so he can add a legal malpractice claim.
15   See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the
16   general rule . . . that a federal appellate court does not
17   consider an issue not passed upon below.”). Accordingly, we
18   find no manifest injustice would result from not recalling
19   the mandate because any appeal would be meritless.

20        For the reasons stated above, the order of the district
21   court is AFFIRMED, and the motion to recall our mandate in
22   the appeal docketed under 98-9067-cv is DENIED.

23
24
25                              FOR THE COURT:
26                              CATHERINE O’HAGAN WOLFE, CLERK
27




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