The Clerk of the Court is respectfully directed to amend the official caption to… v. Miller 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August…

* The Clerk of the Court is respectfully directed to amend
the official caption to conform to the above.
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11-5343-pr
Stevens v. Miller
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2011 8
9
(Argued: March 5, 2012 Decided: April 10, 2012) 10
11
Docket No. 11-5343-pr 12
13
14
EDWARD STEVENS, 15
16
17
Petitioner-Appellee, 18
19
–v.– 20
21
DAVID MILLER, Superintendent, Eastern Correctional Facility, 22
ERIC T. SCHNEIDERMAN, New York State Attorney General, 23
24
Respondents-Appellants. *
25
26
27
28
Before: McLAUGHLIN, B.D. PARKER, and WESLEY, Circuit Judges. 29
30
Appeal from an order of the United States District 31
Court for the Southern District of New York (Kaplan, J.), 32
entered on December 23, 2011, which denied Respondents- 33
Appellants’ motion under Federal Rule of Civil Procedure 34
60(b)(6) to vacate an order granting habeas relief to 35
Petitioner-Appellee that was entered more than a year prior 36
to the Respondent-Appellants’ Rule 60(b)(6) motion. We hold 37
that the district court did not abuse its discretion in 38
denying Respondents-Appellants’ Rule 60(b)(6) motion. 39
40
Affirmed. 41
42

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Page 2 of 23
1
2
ALYSON GILL, Assistant Attorney General (Barbara 3
D. Underwood, Solicitor General, Roseanne B. 4
MacKechnie, Deputy Solicitor General for 5
Criminal Matters, Lisa Ellen Fleischmann, 6
Assistant Attorney General, on the brief) for 7
Eric T. Schneiderman, Attorney General for the 8
State of New York, New York, NY, for 9
Respondents-Appellants. 10
11
RICHARD JOSELSON, Legal Aid Society, Criminal 12
Appeals Bureau, New York, NY, for Petitioner- 13
Appellee. 14
15
16
17
WESLEY, Circuit Judge: 18
Respondents-Appellants (the “State”) appeal from an 19
order of the United States District Court for the Southern 20
District of New York (Kaplan, J.), entered on December 23, 21
2011, which denied the State’s motion under Federal Rule of 22
Civil Procedure 60(b)(6) to vacate the district court’s 23
grant of habeas relief to Petitioner-Appellee Edward Stevens 24
more than a year earlier. The State argues that the 25
district court abused its discretion in denying its Rule 26
60(b)(6) motion. We find that the State’s motion is nothing 27
more than an attempted end-run around the one year time 28
limitation on a Rule 60(b)(1) motion, which allows the 29
district court to relieve a party from a final judgment or 30
order for mistake, inadvertence, surprise, or excusable 31

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Page 3 of 23
neglect. Therefore, we hold that the district court did not 1
abuse its discretion in denying the State’s Rule 60(b)(6) 2
motion. 3
I. Background 4
A. Stevens’s Conviction 5
In early 2000, Edward Stevens was convicted of Robbery 6
in the Third Degree in violation of New York Penal Law § 7
160.05. See People v. Stevens, 8 A.D.3d 2, 3 (N.Y. App. 8
Div. 1st Dep’t 2004). Although Robbery in the Third Degree 9
is ordinarily punishable by a maximum of seven years in 10
prison, the trial court determined that Stevens was a 11
persistent felony offender under New York law and sentenced 12
him to an indeterminate term of imprisonment of fifteen 13
years to life. Id. Stevens’s conviction and sentence were 14
affirmed on direct appeal. See People v. Stevens, 8 A.D.3d 15
2 (N.Y. App. Div. 1st Dep’t 2004), leave denied, 5 N.Y.3d 16
810 (2005). 17
B. Habeas Proceedings 18
Stevens commenced habeas proceedings in the district 19
court in December 2005. He claimed that his designation as 20
a persistent felony offender and his resulting sentence was 21
contrary to, and an unreasonable application of, the United 22

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Page 4 of 23
States Supreme Court’s decisions in Apprendi v. New Jersey, 1
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 2
(2004). In a report and recommendation issued on December 3
31, 2008, Magistrate Judge Maas recommended that the 4
district court deny the petition. 5
By letter dated January 9, 2009, Stevens’s counsel 6
informed the district court that the issue of whether New 7
York’s persistent felony offender sentencing scheme violated 8
the Sixth Amendment was pending before a panel of this 9
Court. As such, he requested that the district court extend 10
the time to file objections to the magistrate judge’s report 11
and recommendation until ten days after this Court’s 12
decision. A few days later, the district court transferred 13
Stevens’s case to the “suspense docket” and instructed 14
Stevens’s counsel to “notify the court promptly upon 15
resolution of the [appeals pending before the Second Circuit 16
panel].” 17
On March 31, 2010, a panel of this Court, in a number 18
of appeals consolidated under Besser v. Walsh, 601 F.3d 163 19
(2d Cir. 2010), declared New York’s persistent felony 20
offender sentencing scheme unconstitutional. The next day, 21
Stevens’s counsel informed the district court of Besser and 22

-- 4 of 23 --

Page 5 of 23
urged the court to grant Stevens’s habeas petition. The 1
State responded by letter dated April 16, 2010. In that 2
letter, the State noted that a petition for rehearing en 3
banc was pending in Besser and asked that the court refrain 4
from relying on Besser until this Court rendered a decision 5
on the petition for rehearing. Although the State’s letter 6
was apparently never docketed, the district court 7
acknowledged receiving it. 8
This Court granted rehearing en banc on the issue of 9
whether New York’s persistent felony offender sentencing 10
scheme contravened clearly established Supreme Court 11
precedent on April 30, 2010, but the State never informed 12
the district court of our decision to reconsider the panel’s 13
opinion in Besser. On September 27, 2010, the district 14
court relied on the Besser panel decision and granted 15
Stevens’s habeas petition. Judgment was entered on 16
September 29, 2010. The Clerk’s Office mailed notice of the 17
judgment to Stevens’s attorney but failed to provide the 18
State with notice. Because the State failed to check the 19
docket sheet, as required by case law and the district 20
judge’s individual practices, it was unaware of the order 21
granting Stevens habeas relief. 22

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1The change in name from Besser v. Walsh to Portalatin v.
Graham stems from the Besser panel’s varied disposition of the
five appeals originally consolidated under the title Besser v.
Walsh. While holding that New York’s persistent felony offender
sentencing scheme contravened clearly established Supreme Court
precedent, the Besser panel actually affirmed the district
court’s denial of James Besser’s habeas petition on the ground
that Besser’s conviction had become final before the Supreme
Court’s decision in Blakely. See Besser, 601 F.3d at 183. As
such, we denied Besser’s petition for rehearing en banc on June
4, 2010, and the mandate in his individual appeal issued on July
30, 2010. We granted en banc review in the other four appeals,
and the Court ultimately issued the en banc decision under the
title Portalatin v. Graham.
For convenience, we sometimes refer to en banc review being
granted in “Besser.” By that we mean that the en banc Court
undertook to review the holding of the Besser panel
decision–namely, that New York’s persistent felony offender
sentencing scheme contravened clearly established Supreme Court
precedent interpreting the Sixth Amendment. As noted above, we
recognize that James Besser’s petition for rehearing en banc was
denied.
Page 6 of 23
Less than three weeks after the district court granted 1
habeas relief to Stevens, this Court, sitting en banc, 2
overruled Besser in Portalatin v. Graham, 624 F.3d 69 (2d 3
Cir. 2010). 1 In Portalatin, we held that New York’s 4
persistent felony offender sentencing scheme did not run 5
afoul of clearly established Supreme Court precedent. Id. 6
at 78. Thus, Portalatin ensured the State of certain 7
victory in Stevens’s habeas proceeding. What’s more, the 8
State was surely aware of the Portalatin decision because 9
the Solicitor General of New York argued the case. 10
Nevertheless, the State did not apprise the district court 11

-- 6 of 23 --

2 The Assistant Attorney General who argued the motion before
the district court was not the Assistant Attorney General who
argued on appeal.
Page 7 of 23
of the en banc decision. And because the State never 1
checked the docket sheet to ascertain the status of 2
Stevens’s petition, the State let its time to appeal expire. 3
On September 29, 2011, exactly one year after the entry 4
of judgment granting Stevens habeas relief, Stevens’s 5
counsel wrote a letter to an attorney in the New York State 6
Department of Corrections, enclosed a copy of the district 7
court’s order granting Stevens’s petition, and requested 8
Stevens’s release. On October 12, 2011, the New York 9
Attorney General’s Office became aware of the letter and of 10
the district court’s order. The following day, the State 11
made a Rule 60(b)(6) motion to vacate the district court’s 12
judgment granting Stevens habeas relief. 13
C. Rule 60(b) Proceedings 14
On October 18, 2011, the district court held a hearing 15
on the State’s Rule 60(b)(6) motion. Time and again, the 16
State admitted its negligence in failing to check the docket 17
sheet and failing to apprise the district court of 18
Portalatin. 2 Nevertheless, the State contended that it was 19
entitled to Rule 60(b)(6) relief because “extraordinary 20

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3As explained in footnote 1, the mandate disposing of James
Besser’s individual appeal issued on July 30, 2010. However, the
mandates in the other appeals consolidated in Besser–where the
issue of whether New York’s persistent felony offender sentencing
scheme ran afoul of clearly established Supreme Court precedent
was dispositive–had not issued. When the State refers to the
mandate in Besser not being issued, it means that Besser’s
holding regarding New York’s persistent felony offender
sentencing scheme was under review by the en banc Court.
Page 8 of 23
circumstances” existed. In support of its argument, the 1
State noted that (1) the district court’s order to release 2
Stevens was based on a panel decision of this Court that was 3
overruled less than three weeks after the entry of judgment 4
in this matter; (2) the mandate in the Besser panel decision 5
never issued; 3 (3) Stevens’s counsel never informed the 6
district court of Portalatin; and (4) the Clerk’s Office 7
never provided the State notice of the district court’s 8
decision. 9
Stevens’s counsel countered that Rule 60(b)(6) relief 10
was inappropriate because the State’s motion was not made 11
within a reasonable time following entry of judgment and 12
because Rule 60(b) cannot be used as a mere substitute for a 13
party’s failure to appeal in a timely manner. He candidly 14
admitted that he delayed seeking Stevens’s release until a 15
year had elapsed from the entry of the district court’s 16
judgment so as to prevent the State from pursuing relief 17

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Page 9 of 23
under Rule 60(b)(1), which allows a district court to vacate 1
its judgment on the basis of the moving party’s mistake, 2
inadvertence, surprise, or excusable neglect. 3
By memorandum and order filed on December 23, 2011, the 4
district court denied the State’s motion. The court found 5
that even if the State’s neglect was excusable–a premise 6
that the court clearly believed to be dubious at best–the 7
proper avenue for relief was a Rule 60(b)(1) motion, which 8
was no longer available to the State because more than a 9
year had passed. The court also noted that because Rules 10
60(b)(1) and 60(b)(6) are “mutually exclusive,” Rule 11
60(b)(6) relief was inappropriate. In the alternative, the 12
district court determined that the State was not entitled to 13
Rule 60(b)(6) relief because the State’s motion was not made 14
“within a reasonable time,” as required by Rule 60(c). The 15
court concluded by noting that “[t]he State’s negligent 16
failures . . . have been egregious” and that “[f]air play 17
demands that the State be held responsible for its 18
extraordinary neglect.” It thus ordered Stevens’s release 19
on the force of its September 27, 2010 order. 20
The State now appeals the district court’s denial of 21
its Rule 60(b)(6) motion. 22

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Page 10 of 23
II. Discussion 1
The State claims that the district court abused its 2
discretion in denying its Rule 60(b)(6) motion. The State’s 3
primary argument on appeal is that the district court should 4
have granted its motion because Portalatin constituted a 5
supervening change in governing law that called into 6
question the correctness of the district court’s judgment. 7
It also points to other circumstances it believes make this 8
case “extraordinary.” The State asserts, among other 9
things, that it had no reason to suspect that the district 10
court would issue a ruling when it did, that the Clerk’s 11
Office failed to provide the State notice of judgment, that 12
Stevens’s counsel “misled” the district court, and that 13
“comity concerns” counsel in favor of granting the State’s 14
motion. We find that, even when viewed in the light most 15
charitable to the State, the State’s motion is nothing more 16
than one premised on its own mistake, inadvertence, 17
surprise, and neglect–in other words, an untimely Rule 18
60(b)(1) motion masquerading as a Rule 60(b)(6) motion. The 19
district court did not abuse its discretion in denying the 20
State its requested relief. 21
22

-- 10 of 23 --

Page 11 of 23
A. Relief Under Federal Rule of Civil Procedure 60(b) Is Not 1
Warranted 2
3
Federal Rule of Civil Procedure 60(b) provides: 4
On motion and just terms, the court may relieve a 5
party or its legal representative from a final 6
judgment, order, or proceeding for the following 7
reasons: (1) mistake, inadvertence, surprise, or 8
excusable neglect; (2) newly discovered evidence 9
that, with reasonable diligence, could not have 10
been discovered in time to move for a new trial 11
under Rule 59(b); (3) fraud (whether previously 12
called intrinsic or extrinsic), misrepresentation, 13
or misconduct by an opposing party; (4) the 14
judgment is void; (5) the judgment has been 15
satisfied, released or discharged; it is based on 16
an earlier judgment that has been reversed or 17
vacated; or applying it prospectively is no longer 18
equitable; or (6) any other reason that justifies 19
relief. 20
21
All motions under Rule 60(b) must be made within a 22
reasonable time, and for a motion under subsection (1), (2), 23
or (3), no later than a year after the entry of judgment. 24
Fed. R. Civ. P. 60(c). 25
The decision whether to grant a party’s Rule 60(b) 26
motion is committed to the “sound discretion” of the 27
district court, and appellate review is confined to 28
determining whether the district court abused that 29
discretion. Montco, Inc. v. Barr (In re Emergency Beacon 30
Corp.), 666 F.2d 754, 760 (2d Cir. 1981). In no 31
circumstances, though, may a party use a Rule 60(b) motion 32

-- 11 of 23 --

Page 12 of 23
as a substitute for an appeal it failed to take in a timely 1
fashion. See United Airlines, Inc. v. Brien, 588 F.3d 158, 2
176 (2d Cir. 2009). 3
Rule 60(b)(6) authorizes a district court to grant 4
relief to a moving party for “any other reason that 5
justifies relief.” It is a “grand reservoir of equitable 6
power to do justice in a particular case.” Matarese v. 7
LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) (internal quotation 8
marks omitted). But that reservoir is not bottomless. 9
Recognizing Rule 60(b)(6)’s potentially sweeping reach, 10
courts require the party seeking to avail itself of the Rule 11
to demonstrate that “extraordinary circumstances” warrant 12
relief. See Liljeberg v. Health Servs. Acquisition Corp., 13
486 U.S. 847, 864 (1988); Nemaizer v. Baker, 793 F.2d 58, 63 14
(2d Cir. 1986). Of particular concern is that parties may 15
attempt to use Rule 60(b)(6) to circumvent the one-year time 16
limitation in other subsections of Rule 60(b). See First 17
Fidelity Bank, N.A. v. Gov’t of Antigua & Barbuda–Permanent 18
Mission, 877 F.2d 189, 196 (2d Cir. 1989). 19
Recognizing this concern, we have found that Rule 20
60(b)(1) and Rule 60(b)(6) are “mutually exclusive,” such 21
“that any conduct which generally falls under the former 22

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4The Supreme Court has suggested, in dicta, that Rule
60(b)(6) relief is not available if the moving party is even
partly to blame for the delay. Pioneer Inv. Servs. v. Brunswick
Assocs., 507 U.S. 380, 393 (1993). Stevens devotes a substantial
portion of his brief to urging us to affirm the district court on
this ground. Because we find that the State’s motion can be
fairly classified only as one premised on its own mistake,
inadvertence, surprise, or excusable neglect, we have no occasion
to consider whether such a categorical bar on the availability of
a Rule 60(b)(6) motion is appropriate in all circumstances.
Page 13 of 23
cannot stand as a ground for relief under the latter.” 1
United States v. Cirami, 535 F.2d 736, 740 (2d Cir. 1976) 2
(internal quotation marks omitted); see also Liljeberg, 486 3
U.S. at 864 n. 11.; United States v. Erdoss, 440 F.2d 1221, 4
1223 (2d Cir. 1971). Where a party’s Rule 60(b) motion is 5
premised on grounds fairly classified as mistake, 6
inadvertence, or neglect, relief under Rule 60(b)(6) is 7
foreclosed. See Klapprott v. United States, 335 U.S. 601, 8
614 (1949). 4 For example, in Liljeberg v. Health Services 9
Acquisition Corp., 486 U.S. 847, 850 (1988), the Supreme 10
Court was tasked with determining whether relief under Rule 11
60(b)(6) was appropriate where a party learned of a judge’s 12
conflict of interest 10 months after the Court of Appeals 13
affirmed the district court’s judgment. The Court held that 14
the circumstances warranted Rule 60(b)(6) relief and found 15
“[o]f particular importance” that the case did not involve 16
“neglect or lack of due diligence” on the part of the moving 17
party. Id. at 864 n.11. 18

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5The district court found that the State’s neglect was not
excusable. We assume that it is only for the sake of argument
but recognize that the district court may have been well within
its discretion in denying a timely Rule 60(b)(1) motion on these
facts. The point is that even when we view the facts in a light
most favorable to the State, the State’s motion can only be
properly viewed as one premised on mistake, inadvertence,
surprise, or excusable neglect.
Page 14 of 23
It is undeniable that the State’s Rule 60(b)(6) motion 1
is, at bottom, premised on its own mistake, inadvertence, 2
and neglect. Simply put, it is nothing more than a late 3
Rule 60(b)(1) motion. 5 The State’s failures were 4
significant. Although it notified the district court that a 5
petition for rehearing en banc had been filed in Besser, it 6
never informed the district court that this Court granted 7
the petition for rehearing. Further, the State failed to 8
check the docket sheet to ascertain whether the district 9
court had issued a decision on Stevens’s habeas petition. 10
Finally, when this Court rendered its en banc decision in 11
Portalatin overruling the Besser panel decision, the State 12
failed to notify the district court. This is all the more 13
significant because this Court issued Portalatin within the 14
State’s time to appeal the district court’s order. Had the 15
State kept abreast of the district court’s docket sheet, it 16
surely would have prevailed by either appealing or timely 17
seeking reconsideration from the district court. 18

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Page 15 of 23
Importantly, at hearing before the district court on the 1
State’s Rule 60(b)(6) motion, the State admitted that it was 2
“negligent in failing to check the docket,” noted that it 3
“did make mistakes,” and suggested that it was partly to 4
blame no fewer than five times. 5
B. The State’s Arguments to the Contrary Are Unavailing 6
In its briefs, the State contends that the district 7
court abused its discretion in denying its Rule 60(b)(6) 8
motion for a number of reasons. It argues, among other 9
things, that (1) this Court’s decision in Portalatin 10
constitutes a supervening change in law that warrants Rule 11
60(b)(6) relief; (2) the State had no reason to suspect that 12
the district court would rule on Stevens’s habeas petition 13
when it did; (3) the Clerk’s Office never informed the State 14
of the district court’s judgment; (4) Stevens’s counsel 15
“misled” the district court; and (5) comity concerns counsel 16
in favor of allowing the State recourse under Rule 60(b)(6). 17
We disagree. 18
The State’s contention that Portalatin constitutes a 19
change in decisional law warranting relief under Rule 20
60(b)(6) is unavailing. The State recognizes that a change 21
in decisional law rarely constitutes the “extraordinary 22

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6 We do, of course, recognize that Sargent analogized the
power to recall a mandate to the power conferred on district
courts by Rule 60(b). See Sargent, 75 F.3d at 89.
Page 16 of 23
circumstances” required to prevail on a Rule 60(b)(6) 1
motion. See, e.g., Agostini v. Felton, 521 U.S. 203, 239 2
(1997); Brien, 588 F.3d at 176. Nevertheless, the State 3
seeks safe harbor in our decision in Sargent v. Columbia 4
Forest Products, Inc., 75 F.3d 86 (2d Cir. 1986). 5
The State’s understanding of Sargent suffers from a 6
fatal defect–it ignores the underlying facts. Sargent is 7
not a Rule 60(b) case. 6 Instead, Sargent concerned this 8
Court’s ability to recall its mandate based on “a 9
supervening change in governing law that calls into serious 10
question the correctness of the court’s judgment.” Sargent, 11
75 F.3d at 90 (internal quotation marks and alteration 12
omitted). There, the plaintiff-appellant brought to the 13
Court’s attention that a dispositive case was then pending 14
before the Vermont Supreme Court. The Court proceeded to 15
affirm the district court without the benefit of the Vermont 16
Supreme Court’s decision. When the plaintiff-appellant 17
petitioned for rehearing, the Court denied the petition. 18
About three months later, the Vermont Supreme Court decided 19
the issue in a contrary manner. Just prior to the Vermont 20

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Page 17 of 23
Supreme Court’s decision, the plaintiff-appellant filed a 1
petition for a writ of certiorari in the United States 2
Supreme Court, which was later denied. Three weeks after 3
that denial, the plaintiff-appellant moved this Court to 4
modify its mandate. Id. at 89. 5
The Sargent Court determined that modification of its 6
mandate was appropriate. It identified four factors that 7
should be considered when determining whether to recall a 8
mandate: (1) whether the governing law is unquestionably 9
inconsistent with the earlier decision; (2) whether the 10
movant brought to the Court’s attention that a dispositive 11
decision was pending in another court; (3) whether there was 12
a substantial lapse in time between the issuing of the 13
mandate and the motion to recall the mandate; and (4) 14
whether the equities “strongly favor” relief. Id. at 90. 15
The Court found that modification of the mandate was 16
warranted because all four factors weighed in the plaintiff- 17
appellant’s favor. 18
Even a cursory reading of the case demonstrates that it 19
is of no help to the State’s position here. In Sargent, 20
recall of the mandate was the only recourse available to the 21
diligent appellant. She timely appealed, petitioned for a 22

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7Some district courts within the Circuit have employed
Sargent to determine whether a change in governing law
constitutes “extraordinary circumstances” under Rule 60(b)(6).
See, e.g., Scott v. Gardner, 344 F. Supp. 2d 421, 426-27
(S.D.N.Y. 2004); Devino v. Duncan, 215 F. Supp. 2d 414, 417-19
(S.D.N.Y. 2002). However, we have found no Second Circuit case,
and none has been cited to us, that has employed the framework in
the context of a Rule 60(b)(6) motion. Though the State’s
reliance on Sargent is misplaced largely because of the magnitude
of its neglect and its lack of diligence in this case, we
recognize that in some cases Sargent’s framework may be helpful
in determining whether a change in decisional law, unaccompanied
by the neglect on the part of a moving party that is present
here, may constitute the “extraordinary circumstances” needed to
warrant Rule 60(b)(6) relief.
Page 18 of 23
rehearing, and filed a petition for a writ of certiorari–in 1
short, she exhausted every avenue of potential relief from 2
the erroneous judgment. Here, the State was not diligent. 3
It failed to notify the district court that this Court 4
granted en banc consideration of Besser, failed to check the 5
docket sheet to determine if the district court had rendered 6
a decision, and neglected to inform the district court of 7
this Court’s decision in Portalatin, which was handed down 8
within the State’s time to appeal the district court’s 9
order. As such, had the State endeavored to apprise the 10
district court of Portalatin, it would have become aware of 11
the district court’s order and either timely appealed or 12
filed a motion for reconsideration. For these reasons, the 13
State’s reliance on Sargent is unavailing. 7
14
15

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8 As the State points out in its brief, Judge Kaplan authored
the district court opinion denying James Besser’s habeas
petition. Notice of this Court’s grant of en banc review in the
four other appeals originally consolidated under Besser appeared
on the district court’s docket sheet for James Besser on May 14,
2010. The State faults Judge Kaplan for granting Stevens’s
habeas petition “based on a [Second Circuit] panel
decision . . . that it should have know was the subject of en
banc review.” State Br. 18. Regardless of whether Judge Kaplan
“should have known” that the Besser panel decision was being
reviewed by the en banc Court–either because of the entries on
James Besser’s docket sheet or because the matter was subject to
public reporting–the State would have avoided all of the issues
it now confronts had it simply acted in a diligent and reasonable
manner. We thus are not convinced by the State’s attempts to lay
blame that properly belongs to it at the feet of others.
Page 19 of 23
Similarly unavailing is the State’s reliance on the 1
fact that it never received notice from the Clerk’s Office 2
of the district court’s judgment and that, given the 3
considerable uncertainty of the law at the time, it did not 4
expect the district court to render a decision when it did. 5
We quickly dispatch with the latter objection. The State 6
failed to inform the district court that this Court had 7
granted rehearing in Besser and thus could not be assured 8
that the district court was aware that Besser was subject to 9
en banc review. 8 Had the State so notified the district 10
court, it would have avoided the unfortunate situation it 11
now finds itself in. In any event, “[c]ounsel should 12
not . . . neglect their duty to monitor the docket on the 13
basis of speculation as to the probable date of decision.” 14

-- 19 of 23 --

Page 20 of 23
See Hassett v. Far West Fed. Sav. and Loan Ass’n (In re 1
O.P.M. Leasing Servs., Inc.), 769 F.2d 911, 916 (2d Cir. 2
1985). 3
Nor does the Clerk’s failure to provide the State 4
notice of the judgment rescue the State’s Rule 60(b)(6) 5
motion. It is true, as the State points out, that Federal 6
Rule of Civil Procedure 77(d)(1) requires the Clerk to serve 7
notice of the entry of an order or judgment on the parties. 8
But the very next subsection of the Rule provides that 9
“[l]ack of notice of the entry does not affect the time for 10
appeal or relieve–or authorize the court to relieve–a party 11
for failing to appeal within the time allowed.” Fed. R. 12
Civ. P. 77(d)(2). It follows that lack of notice of the 13
entry of judgment does not constitute extraordinary 14
circumstances warranting Rule 60(b)(6) relief. This Court 15
has made clear that the “parties have an obligation to 16
monitor the docket sheet to inform themselves of the entry 17
of orders they wish to appeal.” United States ex rel. 18
McAllan v. City of New York, 248 F.3d 48, 53 (2d Cir. 2001). 19
We also reject the State’s contention that the length 20
of time it took it to file a Rule 60(b) motion should be 21
excused because Stevens’s counsel “misled” the district 22

-- 20 of 23 --

9At the hearing on the State’s Rule 60(b)(6) motion, the
district court characterized the State’s argument on this score
as “silly.” We agree.
Page 21 of 23
court on two occasions. The State faults Stevens’s counsel 1
for informing the district court that it was bound by the 2
panel decision in Besser and for failing to notify the 3
district court that the en banc petition in Besser had been 4
granted even though the district court directed Stevens’s 5
counsel to “notify the Court promptly upon the resolution of 6
the noted appeals” when it transferred Stevens’s case to the 7
suspense docket. Although Stevens’s counsel made the 8
tactical decision to wait over a year before seeking to 9
enforce the district court’s September 2010 order granting 10
Stevens’s habeas petition, Stevens’s counsel did not mislead 11
the district court. First, as the district court 12
recognized, 9 the district court was hardly duped by 13
Stevens’s counsel into believing that the mandate in Besser 14
had issued. Indeed, the State, by letter dated April 16, 15
2010, informed the district court that the mandate had yet 16
to issue and that an en banc petition was pending. As to 17
the district court’s direction to Stevens’s counsel to 18
notify the court of the outcome of the “noted appeals,” it 19
is clear from the context of the order that the district 20

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court had in mind the outcome of the consolidated appeals 1
before the Besser panel, not a continuing obligation to 2
inform the district court of each development subsequent to 3
the panel rendering a decision. Significantly, the district 4
court understood its own order as such. 5
Finally, we reject the State’s claim that “comity 6
concerns” counsel in favor of allowing the State recourse to 7
Rule 60(b)(6) relief. To be sure, “[t]he state has a strong 8
interest in assuring that constitutionally valid state court 9
judgments are not set aside and can be carried out without 10
undue delay.” Ritter v. Smith, 811 F.2d 1398, 1403 (11th 11
Cir. 1987). Where the State does not diligently protect its 12
interests, however, comity concerns have considerably less 13
force. Had the State behaved in a reasonable manner, 14
Stevens’s sentence would not have been set aside by the 15
federal courts. But it did not behave in a reasonable 16
manner. The State should not now be heard to complain of 17
comity concerns that find their genesis in its own neglect 18
and failure to litigate Stevens’s habeas petition with due 19
diligence. 20
21
22

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III. Conclusion 1
We find that the district court did not abuse its 2
discretion in denying the State’s Rule 60(b)(6) motion. 3
Accordingly, the district court’s order of December 23, 2011 4
is hereby AFFIRMED. Stevens’s pro se motion dated March 16, 5
2012 requesting immediate release from custody is moot 6
because Stevens has been released. 7

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