     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.
21       - - - - - - - - - - - - - - - - - - - -X
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).

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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,”

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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

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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




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