DECISION AND ORDER INTRODUCTION This is a proceeding pursuant to 28 U.S.C. §2254 (“Section 2254″) brought by the pro se petitioner, Rayshawn Bethany. ECF No. 1. In a decision and order entered December 19, 2022, ECF No. 36, the Court found that Bethany’s amended petition, ECF No. 34, is a mixed petition containing exhausted and unexhausted claims. After considering the four procedural options available for mixed petitions, the Court declined to dismiss the entire amended petition without prejudice because doing so would jeopardize the timeliness of a subsequent federal habeas petition. ECF No. 36 at 10-11. The Court also found that the use of a stay-and-abeyance, described as the fourth procedural option, was unjustified. Id. at 13-15. The Court instructed Bethany that there were two procedural options available — proceed on the entire amended petition knowing that the only outcome is denial of the amended petition on the merits under 28 U.S.C. §2254(b)(2), or eliminate the unexhausted allegations from the amended petition. ECF No. 36 at 12-13, 15. Bethany was directed to file his response no later than 30 days after the Court entered its order. Id. at 15. Bethany timely responded by filing a pleading captioned as a “Request for Reconsideration of Exhausted and Unexhausted Claims and Reconsideration of Procedural Option Four,” ECF No. 37 at 1-5, and a “Request for Evidentiary Hearing, id. at 6-7. Respondent did not respond to either request. For the reasons discussed below, the Court grants in part and denies in part the request for reconsideration of the previous exhaustion rulings; denies reconsideration of the denial of a stay; denies a stay; and denies an evidentiary hearing. RECONSIDERATION Bethany requests reconsideration of the Court’s exhaustion rulings regarding Ground Five, Ground Six, and various sub-grounds within Ground Nine. ECF No. 37 at 1-3. He also requests reconsideration of “procedural option four,” id. at 4-5, and the grant of a stay-and-abeyance, id. I. Legal Standard “Where a movant fails to indicate which Federal Rule of Civil Procedure applies, courts have considered a motion for reconsideration to constitute either a motion to alter or amend a judgment under Rule 59(e) or a motion for relief from a judgment or order pursuant to Rule 60(b).” Miran v. Solomon, No. 15-CV-6133-FPG, 2021 WL 48517, at *1-2 (W.D.N.Y. Jan. 6, 2021) (citing Assoc. for Retarded Citizens of Conn., Inc. v. Thorne, 68 F.3d 547, 553 (2d Cir. 1995)). Since Bethany’s motion was filed within 28 days of the date of the order he challenges, the Court will deem his motion as brought under Rule 59(e). See id. “‘It is well-settled that Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits[.]‘” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). “Rather, ‘the standard for granting [a Rule 59 motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.’” Id. (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); alteration in original). II. The Exhaustion Rulings A. Ground Five Grounds Five, Eight, and Nine consist of allegations that the multiple attorneys who represented Bethany at the trial level were constitutionally ineffective. Ground Five in particular asserts that attorney John Jordan, Esq. had a “conflict” at sentencing because he failed to object to alleged misinformation in the pre-sentence report. ECF No. 34 at 22. When originally asked by the Court where this claim was raised, however, Bethany cited only his C.P.L. §440.20 motion and did not mention his pro se supplemental C.P.L. §440.10 motion. See ECF No. 34 at 22. The Court found that Ground Five is unexhausted because it was raised in his pro se C.P.L. §440.20 motion to set aside the sentence. ECF No. 36 at 5, 13. As the Court explained, a C.P.L. §440.20 motion to set aside the sentence is the wrong vehicle for raising an ineffective assistance claim, which should be raised in a C.P.L. §440.10 motion to vacate the judgment. Id. Bethany now asserts that Ground Five also was raised in his pro se supplemental C.P.L. §440.10 motion in Argument II(I). See ECF No. 37 at 1 2. After comparing the pleadings, the Court agrees that Bethany did mention counsel’s failure to object to the pre-sentence report at page 23 of his 31-page brief in support of his pro se supplemental motion to vacate under C.P.L. §440.10. The Court grants reconsideration as to Ground Five and finds that it was raised in the pro se supplemental C.P.L. §440.10 motion as well as the C.P.L. §440.20 motion. B. Ground Six As the Court noted in its previous order, Grounds One, Two, and Six all assert violations of Brady v. Maryland, 373 U.S. 83 (1963). ECF No. 36 at 7-9. Ground One asserts that the prosecution failed to disclose the actual terms of jailhouse informant Jeffrey Cohen’s plea deal and failed to correct his allegedly perjurious testimony on that subject. Id. at 7. Ground Two alleges that the prosecution failed to disclose Brandon Burnham’s felony drug convictions and failed to correct his allegedly perjurious testimony on that subject. Id. at 7-8. The Court found that Grounds One and Two were raised in Bethany’s counseled C.P.L. §440.10 motion. Id. Ground Six asserts that the prosecution withheld “footage from D-11 police camera located at corner of Hampshire and West Ferry Streets.” Id. at 8 (citing ECF No. 34 at 23). Bethany conceded that it was “[n]ot raised” below. ECF No. 34 at 23. Bethany still concedes that Ground Six is unexhausted but asserts that the exhaustion requirement should be excused as to Ground Six because he did not learn of the police camera footage until after the counseled C.P.L. §440.10 motion was filed. ECF No. 37 at 2
