    12-1737
    Ciriaco v. United States


                               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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    19th day of March, two thousand thirteen.

    PRESENT:
                        ROBERT A. KATZMANN,
                        DENNY CHIN,
                            Circuit Judges,
                        MIRIAM GOLDMAN CEDARBAUM,*
                            District Judge.
    _____________________________________

    ESMERALDO CIRIACO,

                        Petitioner - Appellant,

                        v.                                              12-1737

    UNITED STATES OF AMERICA,

                Respondent - Appellee.
    _____________________________________

    FOR PETITIONER-APPELLANT:                     Esmeraldo Ciriaco, pro se, Otisville, NY.

    FOR RESPONDENT-APPELLEE:                      Rebecca Mermelstein and Katherine Polk Failla,
                                                  Assistant United States Attorneys, for Preet
                                                  Bharara, United States Attorney for the Southern
                                                  District of New York, New York, NY.

              *
           The Honorable Miriam Goldman Cedarbaum, of the United States District Court for the
    Southern District of New York, sitting by designation.
       Appeal from an order of the United States District Court for the Southern District of New

York (McKenna, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order is AFFIRMED.

       Appellant Esmeraldo Ciriaco, proceeding pro se, appeals from the district court’s order

rejecting his Federal Rule of Civil Procedure 60(b)(6) motion for relief from the district court’s

earlier order denying his 28 U.S.C. § 2255 habeas petition. We assume the parties’ familiarity

with the underlying facts, the procedural history of the case, and the issues on appeal.

       We review a district court’s ruling on a Rule 60(b) motion for abuse of discretion. See

Rodriguez v. Mitchell, 252 F.3d 191, 200 (2d Cir. 2001). “Under this standard, we must affirm

the grant or denial of vacatur, unless the ruling [is based] on an erroneous view of the law or on a

clearly erroneous assessment of the evidence.” Id. (internal quotation marks omitted).

       With the exception of Ciriaco’s ineffective assistance of counsel claim, all of the claims

asserted by Ciriaco in his Rule 60(b) motion are barred because Ciriaco failed to raise them on

direct appeal and has not shown cause and prejudice for that failure. See Massaro v. United

States, 538 U.S. 500, 504-05 (2003). Even if we were to treat Ciriaco’s Rule 60(b) motion as an

independent § 2255 habeas claim1, see, e.g., Negron v. United States, 394 F. App’x 788, 792-794

(2d Cir. 2010) (summary order), the district court correctly denied the motion. Ciriaco’s new




       1
          Normally, under similar circumstances, the district court would have the option of
treating the improper Rule 60(b) motion as a second or successive habeas petition and
transferring it to the Court of Appeals for possible certification. See Gitten, 311 F.3d at 534.
However, the Rule 60(b) motion in this case is apparently not tantamount to a successive petition
because it was filed before the denial of Ciriaco’s first § 2255 motion became final. See Whab
v. United States, 408 F.3d 116, 120 (2d Cir. 2005) (holding that habeas adjudication does not
become “final until petitioner’s opportunity to seek review in the Supreme Court has expired”).

                                                 2
claims for habeas relief, including his ineffective assistance of counsel claim, would all be barred

as untimely because the new “habeas petition” (i.e., the Rule 60(b) motion) was not filed within

one year of the judgment of conviction becoming final. See 28 U.S.C. § 2255(f); Clay v. United

States, 537 U.S. 522, 527-28 (2003).

       We have considered all of Ciriaco’s remaining arguments and find them to be without

merit. For the foregoing reasons, the order of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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