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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 day of May, two thousand ten. th

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RALPH K. WINTER,

9 JOSEPH M. McLAUGHLIN,

10 Circuit Judges.

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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.

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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.

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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
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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.

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25 FOR THE COURT:

26 CATHERINE O’HAGAN WOLFE, CLERK

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