1 10-3353-pr Green v. Walsh 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 29 th** **day of February, two thousand twelve.** 4 5 **PRESENT:** 6 **DENNIS JACOBS,** 7 **Chief Judge ,**  8 **RALPH K. WINTER,** 9 **REENA RAGGI,** 10 **Circuit Judges .**  11 12 - - - - - - - - - - - - - - - - - - - -X 13 **Jamal Green,** 14 **Petitioner-Appellant ,**  15 16 **-v.- 10-3353-pr** 17 18 **James Walsh, Superintendent,** 19 **Respondent-Appellee .**  20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR PETITIONER-APPELLANT:** Sally Wasserman, New York, NY. 23 24 **FOR RESPONDENT-APPELLEE** : Leilani Rodriguez, Assistant 25 Solicitor General, New York, NY 26 (Eric T. Schneiderman, Attorney 27 General of the State of New 28 York; Barbara Underwood, 29 Solicitor General; and Roseann 30 B. MacKechnie, Deputy Solicitor 31 General for Criminal Matters, on 32 the brief ). 332 1 Appeal from a judgment of the United States District 2 Court for the Eastern District of New York (Dearie, J. ). 3
4 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 5

**AND DECREED**that the judgment of the District Court is 6

**AFFIRMED**
. 7
8 Petitioner-Appellant Jamal Green appeals the District 9 Court’s decision denying his motion to vacate an earlier 10 judgment, which denied his petition for habeas corpus. We 11 assume the parties’ familiarity with the underlying facts, 12 the procedural history of the case, and the issues on 13 appeal. 14 Green brought his motion to vacate under Rule 60(b)(5) 15 of the Federal Rules of Civil Procedure, which provides : “On 16 motion and just terms, the court may relieve a party . . . 17 from a final judgment, order, or proceeding” if, interalia , 18 “(5) the judgment . . . is based on an earlier judgment that 19 has been reversed or vacated . . . .” 20 We review the denial of a Rule 60(b) motion for abuse 21 of discretion. Branum v. Clark , 927 F.2d 698, 704 (2d Cir. 22 1991) (citing Browder v. Dir., Dep’t of Corr. of Ill. , 434 23 U.S. 257, 263 n.7 (1978)). Our review is “limited,” 243 however, Gonzalez v. Crosby , 545 U.S. 524, 535 (2005), and 1 we look at “only the denial of the motion and not the merits 2 of the underlying judgment for errors that could have been 3 asserted on direct appeal.” Branum , 927 F.2d at 704 (citing 4 Browder , 434 U.S. at 263 n.7). Green has not shown that the 5 district court abused its discretion. 6 Green’s initial habeas petition challenged his state 7 conviction. He contends that the state judgment was vacated 8 when his original sentence was vacated and his case remanded 9 for an evidentiary hearing. Even if this were so, Rule 10 60(b)(5) did not compel the district court to provide 11 relief. Green’s motion provided no explanation as to what 12 permissible grounds for habeas relief he would raise if the 13 district court’s earlier judgment (denying his habeas 14 petition) were vacated. Absent that, Green has failed to 15 present a motion raising “just terms” for relief, Fed. R. 16 Civ. P. 60(b), to demonstrate how the district court abused 17 its discretion, or to establish that the new habeas 18 proceeding he seeks would raise any new issues that have not 19 already been considered and rejected by the district court, 20

see28 U.S.C. § 2254(d) (identifying limited bases upon 21 which a state prisoner can obtain habeas relief). 22 Moreover, Green has not shown how the district court’s 23 initial decision denying Green’s habeas petition was “based 244 on” the earlier state judgment. Fed. R. Civ. P. 60(b)(5). 1 Green had collaterally attacked that judgment via habeas, 2 and the district court rejected that challenge. 3 Finally, Green has forfeited any argument that the 4 district court should have suasponte construed his Rule 5 60(b) motion as a new habeas petition by presenting that 6 argument for the first time in his reply brief. See Conn. 7 Bar Ass’n v. United States , 620 F.3d 81, 91 n.13 (2d Cir. 8 2010). In any event, we cannot conclude that the district 9 court was required to construe the motion as such when Green 10 provided no basis to believe that a new habeas proceeding 11 would afford him relief. 12 13 We have considered all of Green’s additional arguments 14 and find them to be without merit. Accordingly, the 15 judgment of the District Court is AFFIRMED. 16
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk 19 20 21