Brims

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

EDWARD BRIMS,

Petitioner,

No. 18-CV-6973 (KMK)

v.

OPINION & ORDER

J. COLLADO, SUPT.,

Respondent.

Appearances

Edward Brims

Walkill, NY

Pro Se Petitioner

Priscilla Steward, Esq.

Assistant Attorney General

New York, NY

Counsel for Respondent

Lisa E. Fleischmann, Esq.

Kaufman Borgeest & Ryan LLP

Valhalla, NY

Counsel for Respondent

KENNETH M. KARAS, United States District Judge:

Before the Court is Petitioner Edward Brims’ (“Petitioner”) Motion pursuant to Federal

Rule of Civil Procedure 60(b)(4) to vacate this Court’s judgment denying Petitioner’s Habeas

Petition (the “Motion”). (See Mot. to Vacate (“Mot.”) (Dkt. No. 65).) For the following reasons,

Petitioner’s Motion is denied.

I. Background

Petitioner, proceeding pro se, filed a Petition for a Writ of Habeas Corpus (the “Habeas

Petition”), pursuant to 28 U.S.C. § 2254, challenging his January 27, 2012, conviction in New

York State Supreme Court, Rockland County. (See Pet. for Writ of Habeas Corpus (“Pet.”) (Dkt.

No. 1).) In a Report and Recommendation (“R&R”) dated March 4, 2022, Magistrate Judge Paul

Davison recommended that the Habeas Petition be denied in its entirety. (See R&R 1 (Dkt. No.

48).) Petitioner filed Objections to the R&R on March 29, 2022, and May 5, 2022. (See Pet’r’s

Obj’s to R&R (“First Obj’s”) (Dkt. No. 50)); Pet’r’s Obj’s to R&R (“Second Obj’s”) (Dkt. No.

52).) After reviewing the R&R and Petitioner’s Objections, the Court issued an Opinion &

Order on October 11, 2022, adopting the R&R and denying the Habeas Petition. (See Opinion &

Order (“Op. & Order”) (Dkt. No. 58).)

On November 7, 2022, Petitioner filed a Letter, which the Court construed as a Motion

for Reconsideration. (See Letter from Edward Brims to Court (October 28, 2022)

(“Reconsideration Letter”) (Dkt. No. 61).) On the same day, the Court received a letter from

Petitioner requesting that the Court stay its decision on Petitioner’s Motion for Reconsideration

while he pursued a § 440.10 motion based on a case recently handed down by the New York

Court of Appeals. (See Letter from Edward Brims to Court (“Stay Letter”) (October 24, 2022)

(Dkt. No. 62).) Petitioner’s request for a stay was denied on December 14, 2022. (See Mot. for

Recons. Order (Dkt. No. 63).)1

0F

On November 25, 2024, Petitioner filed the instant Motion. Petitioner argues that the

Court’s judgment should be vacated as void on the grounds that (1) this Court lacked jurisdiction

1 In the same Order, the Court directed Petitioner to “submit his Memorandum of Law in

support of his Motion for Reconsideration no later than 20 days from the receipt of th[at] Order.”

(Id. at 4.) Petitioner failed to do so. (See Dkt.)

to hear this case because he had been granted full transactional immunity prohibiting prosecution

for any crime connected to his “[second] Grand Jury testimony,” and that (2) this Court

committed procedural errors by failing to conduct an evidentiary hearing and improperly

rejecting his motion for discovery, which amounted to Due Process violations. (See Mot. 2, 5.)

II. Discussion

A. Applicable Standards

Motions to vacate a judgment are properly brought under Rule 60(b) of the Federal Rules

of Civil Procedure, which provides that, “[o]n motion and just terms, the court may relieve a

party . . . from a final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b). Specifically, Rule

60(b) provides six grounds for relief:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered

evidence that, with reasonable diligence, could not have been discovered in time to

move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic

or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or discharged; it is

based on an earlier judgment that has been reversed or vacated; or applying it

prospectively is no longer equitable; or (6) any other reason that justifies relief.

Id. “Properly applied [,] Rule 60(b) strikes a balance between serving the ends of justice and

preserving the finality of judgments.” Leeber Realty LLC v. Trustco Bank, No. 17-CV-2934,

2019 WL 498253, at *3 (S.D.N.Y. Feb. 8, 2019) (alteration in original) (quoting Nemaizer v.

Baker, 793 F.2d 58, 61 (2d Cir. 1986), aff’d, 798 F. App’x 682 (2d Cir. 2019). “Motions under

Rule 60(b) are addressed to the sound discretion of the district court and are generally granted

only upon a showing of exceptional circumstances.” Vasquez v. Fredericks, No. 15-CV-9528,

2021 WL 1579489, at *1 (S.D.N.Y. Apr. 22, 2021) (quoting Mendell In Behalf of Viacom, Inc. v.

Gollust, 909 F.2d 724, 731 (2d Cir. 1990)). “Although [Rule 60(b)] should be broadly construed

to do substantial justice, final judgments should not be lightly reopened.” S.E.C. v. Bronson, 602

F. Supp. 3d 599, 610 (S.D.N.Y. 2022) (quoting Tapper v. Hearn, 833 F.3d 166, 170 (2d Cir.

2016), aff’d sub nom. United States S.E.C. v. Bronson, No. 22-1045, 2022 WL 5237474 (2d Cir.

Oct. 6, 2022). “The movant must adduce ‘highly convincing material’ in support of the motion.”

Leeber Realty, 2019 WL 498253, at *3 (quoting United States v. Cirami, 563 F.2d 26, 33 (2d

Cir. 1977)); see also Empresa Cubana Del Tabaco v. General Cigar Co. Inc., 385 F. App’x. 29,

31 (2d Cir. 2010) (summary order) (noting that Rule 60(b) motions are “disfavored”).

B. Application

1. Timeliness

Rule 60(b) motions “must be made within a reasonable time.” Fed. R. Civ. P. 60(c)(1).

To determine whether a Rule 60(b) motion is timely, the Court must “must scrutinize the

particular circumstances of the case, and balance the interest in finality with the reasons for

delay.” Bongiorno v. United States, No. 22-MC-211, 2022 WL 17261979, at *2 (S.D.N.Y. Nov.

29, 2022) (quoting PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir.)), cert. denied,

464 U.S. 936, 104 (1983).

Petitioner filed the instant Motion on November 25, 2024, (see Mot.), which is

approximately two years (25 months) after this Court issued its Opinion & Order denying

Petitioner’s Habeas Petition, (see Op. & Order 27). The Second Circuit is “exceedingly lenient

in defining the term ‘reasonable time,’ with respect to voidness challenges,” Guthrie v. Rainbow

Fencing Inc., 349 F.R.D. 55, 63 (E.D.N.Y. 2025) (quoting S.E.C. v. Romeril, 15 F.4th 166, 171

n.3 (2d Cir. 2021)), and has recognized a wide range of time spans in conducting the 60(b)(4)

motion timeliness inquiry, compare Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (finding

a 26-month delay in filing Rule 60(b) motion “patently unreasonable”), and Rodriguez v.

Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (finding a Rule 60(b) motion untimely when filed

three and one-half years after judgment), and Bronson, 602 F. Supp. 3d at 610 (finding that

courts in the Second Circuit have found delays as short as 18 months untimely), with Cao v.

Atami on 2nd Ave., Inc., No. 15-CV-5434, 2022 WL 17583776, at *3 (S.D.N.Y. Dec. 12, 2022)

(recognizing that courts have defined “reasonable time” in the context of a 60(b)(4) motion

leniently), and Rodriguez v. United States, No. 97-CV-2545, 2005 WL 887142, at *2 (S.D.N.Y.

Apr. 15, 2005) (asserting that “any time is a ‘reasonable’ time to set aside a void judgment”), and

Garcia v. United States, No. 97-CV-2962, 2009 WL 484435, at *2 (S.D.N.Y. Feb. 24, 2009)

(finding a nine year delay to be timely).

Given the length of the delay here, the Court has serious questions about the timeliness of

the instant Motion. Nevertheless, because Petitioner’s Motion fails on the merits, as discussed

below, the Court denies it on those grounds alone and does not address whether or not the

Motion was timely filed.

2. Merits

Rule 60(b)(4) allows a court to vacate a judgment if “the judgment is void.” Fed. R. Civ.

P. 60(b)(4). “A judgment is void under Rule 60(b)(4) of the Federal Rules of Civil Procedure

‘only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it

acted in a manner inconsistent with due process of law.’” Leeber Realty LLC v. Trustco Bank,

No. 17-CV-2934, 2019 WL 498253, at *8 (S.D.N.Y. Feb. 8, 2019) (quoting Grace v. Bank

Leumi Tr. Co. of N.Y., 443 F.3d 180, 193 (2d Cir. 2006)). The Supreme Court has stated:

[A] void judgment is one so affected by a fundamental infirmity that the infirmity

may be raised even after the judgment becomes final. . . . The list of such infirmities

is exceedingly short; otherwise, Rule 60(b)(4)’s exception to finality would

swallow the rule. A judgment is not void, for example, simply because it is or may

have been erroneous . . . .

United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010) (citation and

quotation marks omitted).

Petitioner first argues that this Court lacked jurisdiction to hear this case because he had

been granted “full transactional immunity prohibiting prosecution for any crime[s] connected to

[his Second] Grand Jury testimony.” (See Not. of. Mot. 2.) Respondent argues that Petitioner

was not granted immunity as he executed a written waiver of immunity and that this Court’s

jurisdiction is validly based on 28 U.S.C. § 2254. (See Opp’n to Mot. to Vacate J. (“Opp’n to

Mot.”) 3 (Dkt. No. 69).)

This Court rejects Petitioner’s argument for three reasons. First, the Court had

jurisdiction under 28 U.S.C. § 2254. “In order for a federal court to have jurisdiction over a

habeas petition, the petitioner must be ‘in custody pursuant to the judgment of a State court’ at

the time the petition is filed.” Nowakowski v. New York, 835 F.3d 210, 215 (2d Cir. 2016)

(quoting 28 U.S.C. § 2254(a)); see Jenkins v. Capra, 759 F. Supp. 3d 401, 421 (S.D.N.Y. 2024)

(“A district court has subject matter jurisdiction to consider a state prisoner’s petition for habeas

relief ‘only on the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States’ at the time he files the petition.” (quoting Hurdle v. Sheehan, No. 13-CV-

6837, 2016 WL 4773130, at *2 (S.D.N.Y. Sept. 12, 2016))). Here, Petitioner is incarcerated

pursuant to the judgment of the New York State Supreme Court, Rockland County. (See Op. &

Order 1.) Second, the immunity question goes to the merits of the Habeas Petition, not the

Court’s jurisdiction to rule on it. See Carroll v. Trump, 88 F.4th 418, 425 (2d Cir. 2023) (“The

Supreme Court recognized in Nevada v. Hicks that ‘[t]here is no authority whatever for the

proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction.’”

(quoting Nevada v. Hicks, 533 U.S. 353, 373 (2001))); cf. Bartolini v. Mongelli, No. 17-CV-

6276, 2018 WL 6333827, at *10 (E.D.N.Y. Nov. 7, 2018) (“Judicial immunity, on the other

hand, is waivable, and therefore a judicial immunity defense is not jurisdictional, but a

disposition on the merits.”), report and recommendation adopted as modified, No. 17-CV-06276,

2018 WL 6338771 (E.D.N.Y. Dec. 4, 2018). Third, even on the merits, Petitioner did not have

immunity. Petitioner signed a written waiver of immunity prior to his first grand jury testimony.

(See R&R 5.) Moreover, because Petitioner failed to respond to Respondent’s Opposition, (see

generally Dkt.), he has effectively conceded this argument, Curry Mgmt. Corp. v. JPMorgan

Chase Bank, N.A., 643 F. Supp. 3d 421, 426 (S.D.N.Y. 2022) (“A party may be deemed to

concede an argument by failing to address it in an opposition brief.” (citing AT & T Corp. v.

Syniverse Tech., Inc., No. 12-CV-1812, 2014 WL 4412392, at *7 (S.D.N.Y. Sept. 8, 2014))).

Thus, the Court had jurisdiction.

Petitioner also argues that his judgment was premised on a violation of Due Process

because of procedural errors by this Court failing to conduct an evidentiary hearing and

improperly rejecting his motion for discovery. (See Mot. 5.) A Rule 60 motion is not “a vehicle

for a party dissatisfied with the Court’s ruling to advance new theories that the movant failed to

advance in connection with the underlying motion.” Postell v. Bradt, No. 09-CV-4853, 2013

WL 6043916, at *1 (S.D.N.Y. Nov. 13, 2013) (citing Parrish v. Sollecito, 253 F. Supp. 2d 713,

715 (S.D.N.Y.2003)). Petitioner fails to explain how his Due Process claim avoids this rule.

(See generally First Obj’s; Second Obj’s.)

Even on the merits, the Court complied with Due Process. The lack of an evidentiary

hearing does not violate Due Process because no hearing was required. See Shinn v. Ramirez,

596 U.S. 366, 381 (2022) (finding that even if all of the § 2254(e) requirements that would allow

a court to conduct evidentiary hearings are satisfied, “a federal habeas court still is not required

to hold a hearing or take any evidence”) (italics omitted)); see also Johnson v. Fogg, 653 F.2d

750, 753 (2d Cir. 1981) (finding that habeas petitions submitted by pro se litigants are liberally

construed, but that district courts are “not required to provide an evidentiary hearing . . . when

their petitions do not raise issues sufficient to merit a hearing”).

And the Court agrees with Respondents that denying Petitioner’s discovery motion does

not amount to a Due Process violation. (See Opp’n to Mot. 3–4.) Rulings on discovery disputes

by a magistrate judge may be set aside “only if the district court determines the ruling to be

‘clearly erroneous or contrary to law.’” Mave Hotel Invs. LLC v. Certain Underwriters at

Lloyd’s, No. 21-CV-8743, 2024 WL 5135691, at *2 (S.D.N.Y. Dec. 17, 2024) (quoting Thai Lao

Lignite (Thailand) Co. v. Gov’t of Lao People’s Democratic Republic, 92 F. Supp. 2d 508, 511

(S.D.N.Y. 2013) (citing 28 U.S.C. § 636(b)(1)(A)). While documents filed by pro se litigants are

to be “liberally construed,” Sanderson v. Leg Apparel LLC, No. 19-CV-8423, 2024 WL 498094,

at *2 (S.D.N.Y 2024) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)), “federal district courts

have broad discretion in deciding discovery disputes,” Reynolds v. County of Onondaga, No. 22-

CV-1165, 2024 WL 4025866, at *3 (S.D.N.Y. Aug. 7, 2024) (citing Grand Cent. P’ship, Inc. v.

Cuomo, 166 F.3d 473, 488 (2d Cir. 1999)). Because Petitioner’s motion for discovery was

properly dismissed by this Court, this dismissal does not amount to a Due Process violation as

required by Rule 60(b)(4).

III. Conclusion

For the reasons set forth above, Petitioner’s Motion is denied.2

1F

2 Because Petitioner is proceeding in forma pauperis, (see Dkt. No. 4), his Motion to

Waive Filing Fees is also denied as moot, (see Dkt. No. 66).

The Court also denies Petitioner’s Motion to Stay Decision on his 60(b) Motion. (See

Dkt. No. 67.) Petitioner requests the stay because Respondent allegedly has failed to produce

Petitioner’s “[second] Grand Jury testimony” and because that failure “is largely due to a judicial

The Clerk of Court is respectfully direction to terminate the pending Motions, (Dkt. Nos.

65, 66, 67), and mail a copy of this Order to Petitioner.

SO ORDERED. /

Dated: September 15, 2025 AG os

White Plains, New York

KENNETH M. KARAS

United States District Judge

scandal.” (See id. 1.) Petitioner does not explain what the “judicial scandal” is, how it allegedly

caused Respondent to not produce the requested testimony, or why that testimony would be

necessary for the resolution of Petitioner’s instant Motion. (See generally id.) Accordingly, this

Motion is denied. See Lohnn vy. Int’l Bus. Machs. Corp., No. 21-CV-6379, 2022 WL 36420, at

*18-19 (S.D.N.Y. Jan. 4, 2022) (the district court utilizing its discretion to deny a stay request

where “the [c]ourt c[ould] find no basis for a stay”); cf Pullman v. Collins, No. 24-CV-1383,

2025 WL 1004731, at *2 (S.D.N.Y. Apr. 3, 2025) (“The party seeking the stay . . . must establish

good cause for the stay.” (citation omitted)).