Opinion
Nos. 05 Civ. 0573 (LAK), (S5 00 Crim. 1267 (LAK)).
January 31, 2005
ORDER
Movant was convicted of conspiracy to commit securities fraud, in violation of 15 U.S.C. §§ 77q(a), 77x, wire fraud, in violation of 18 U.S.C. §§ 1343, 1346, and commercial bribery, in violation of 18 U.S.C. § 1952(a)(3) and sentenced principally to a term of imprisonment of 60 months. His post-verdict motion was denied and the conviction affirmed on appeal. United States v. Benussi, 216 F. Supp.2d 299 (S.D.N.Y. 2002), aff'd sub nom. United States v. Salmonese, 352 F.3d 608 (2d Cir. 2003).
Now before the Court is a purported Section 2255 motion on movant's behalf. The motion, however, is signed "12/20/04 Glen Benussi POA Patricia Benussi." Attached to it is an Internal Revenue Service Form 2848 by which the movant appears to have designated Patricia Benussi as his representative to deal with income tax matters and to receive, but not to endorse or cash, income tax refund checks and to receive the originals of notices and communications. The only document signed by movant is an in forma pauperis application.
The Rules Governing Section 2255 Motions do not address the question whether such applications must be signed by the movant. Rule 12, however, states that "[i]f no procedure is specifically prescribed by these rules, the district court may proceed in any lawful manner not inconsistent with these rules . . . and may apply the . . . Federal Rules of Civil Procedure . . . to motions filed under these rules." Fed.R.Civ.P. 11(a) requires that every motion "be signed by at least one attorney of record . . . or, if the party is not represented by an attorney, . . . by the party." In consequence, the Court must consider whether to apply Rule 11(a) to a Section 2255 motion. It concludes that it should do so.
Section 2255 motions are the principal vehicle for collateral attacks on federal criminal convictions. Their precise content, moreover, is extremely important to the movants. They must set forth "all the grounds for relief which are available to the movant and of which he has or, by the exercise of reasonable diligence, should have knowledge." Section 2255 Rules, Rule 2(b). The failure to do so may have important consequences. Indeed, ordinarily, a federal inmate may not file a second or successive Section 2255 motion absent permission of the relevant court of appeals, which is available only in limited circumstances. 28 U.S.C. § 2255. In consequence, it is vital for any court receiving such a motion to be certain that the motion is filed with the movant's authority and that it is binding upon the movant.
Here, the documents submitted appear to establish that Patricia Benussi is empowered to receive certain information concerning movant's income tax matters, and the in forma pauperis application apparently signed by Glen Benussi at least implies that Patricia Benussi was expected to file some application on his behalf. But they fall considerably short of establishing that Patricia Benussi has Glen Benussi's authority to file a Section 2255 motion, much less to determine what grounds to advance and facts to set forth in support of such an application.
Accordingly, the motion for relief pursuant to Section 2255 is denied on the ground that the Patricia Benussi lacks standing to seek relief in her own right and has not established authority to seek relief on behalf of Glen Benussi. Given the grounds for denial of the motion, this order does not preclude Glen Benussi, either through counsel or by himself, from filing a motion pursuant to Section 2255. The Court notes that the time within which such a motion properly might be filed is drawing short.
SO ORDERED.