Lora v. West

Background

Jose Lora filed a counseled petition under 28 U.S.C. § 2254 challenging convictions after two trials for several counts of second-degree murder and one count of second-degree conspiracy. In 2005, the court adopted a magistrate judge’s recommendation and denied the petition. The judgment was entered on June 21, 2005.

In 2009, Lora filed a motion under Federal Rule of Civil Procedure 60(b)(6) seeking to vacate that judgment. He argued that his attorney had been ineffective by failing to raise additional grounds for relief, object to the recommendation, and seek a certificate of appealability. The court denied that motion in a September 2010 order after concluding that it had not been filed within a reasonable time. Lora later pursued appeals, but the Second Circuit dismissed them for lack of jurisdiction, and the court denied a later request for a certificate of appealability.

Current Motion

Nearly three years after the dismissal of his second appeal, Lora filed the motion addressed in this order. He again invoked Rule 60(b)(6) and relied on Kemp v. United States, a 2022 Supreme Court decision holding that Rule 60(b)(1) covers all mistakes of law made by a judge. Lora argued that errors identified in his petition and in later rulings could therefore be raised under Rule 60(b)(6).

Court’s Analysis

The court rejected that argument for several reasons. First, the Second Circuit had already dismissed Lora’s appeal from the September 2010 order for lack of jurisdiction. The court found nothing suggesting that Kemp applied retroactively or restarted the one-year period associated with Rule 60(b)(1).

Second, the earlier rulings had also analyzed Lora’s motion under Rule 60(b)(6) and found that it was not filed within a reasonable time. Rule 60(b)(6) is a catch-all provision available only when Rules 60(b)(1) through 60(b)(5) do not apply, and it requires extraordinary circumstances or prevention of extreme and undue hardship. The court concluded that this standard was not met. It noted that the alleged attorney and judicial errors had already been discussed in the earlier proceedings and that Lora’s delay after learning of the 2005 recommendation made both his earlier and current motions untimely.

The court also stated that Kemp did not change the existing limits on Rule 60(b)(6), including the reasonable-time requirement. The court therefore concluded that Kemp did not provide a basis to reopen the September 2010 order.

Disposition

Judge Katherine Polk Failla denied Lora’s motion to reopen. The court declined to issue a certificate of appealability because Lora had not made a substantial showing that a constitutional right had been denied. It also certified that an appeal would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal. The Clerk was directed to terminate the motion and mail Lora a copy of the order.