Opinion
Criminal No. 99-284 ADM/AJB, Civil No. 05-868 ADM.
July 7, 2005
John C. Hetherington, pro se.
Henry J. Shea, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Respondent.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner John C. Hetherington's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 [Docket No. 105], Motion for Immediate Release on Emergency Basis Ex Parte [Docket No. 102], Application in the Nature of Mandamus [Docket No. 113], Motion for Mandatory Recusal of District Judge Ann D. Montgomery [Docket No. 118], Motion to Disqualify Government Attorney Assistant United States Attorney Henry J. Shea [Docket No. 124], and Motion to Strike [Docket No. 127]. For the reasons set forth below, Petitioner's Motions and Application are denied.
II. BACKGROUND
On February 11, 2000, Petitioner was convicted by a jury of two counts of Aiding and Abetting Wire Fraud, one count of Aiding and Abetting Securities Fraud, and one count of Aiding and Abetting Engaging in a Monetary Transaction in Criminally Derived Property [Docket No. 49]. Petitioner was sentenced to an 80 month term of imprisonment and ordered to pay $4,799,268.20 in restitution on June 14, 2000 [Docket No. 57]. The United States Supreme Court denied Petitioner's first petition for a writ of certiorari [Docket No. 62] on March 19, 2001. Hetherington v. United States, 532 U.S. 936 (2001). The Eighth Circuit affirmed Petitioner's conviction on July 11, 2001, and the United States Supreme Court denied Petitioner's second petition for a writ of certiorari [Docket No. 74] on November 26, 2001. United States v. Hetherington, 256 F.3d 788 (8th Cir. 2001), cert. denied, 534 U.S. 1050 (2001).
On May 12, 2004, Petitioner submitted a Motion for New Trial [Docket No. 76] on the grounds of the discovery of new evidence, governmental and judicial misconduct, and lack of jurisdiction and inappropriate venue. This Court issued an Order denying Petitioner's Motion on June 21, 2004 [Docket No. 85].
On July 19, 2004, Petitioner filed a Motion for Reconsideration of Defendant's Motion for New Trial [Docket No. 86] and a Motion to Disqualify AUSA Henry Joseph Shea [Docket No. 91]. In his supporting brief, Petitioner accuses AUSA Shea of, inter alia, introducing false evidence and testimony, withholding exculpatory evidence, wrongly charging Petitioner with aiding and abetting himself, and prosecuting Petitioner without jurisdiction and in an inappropriate venue [Docket No. 94]. This Court denied Petitioner's Motion for Reconsideration and Motion to Disqualify in an Order dated July 29, 2004 [Docket No. 96]. The Eighth Circuit affirmed this decision on March 25, 2005. United States v. Hetherington, 2005 WL 681903 (8th Cir. Mar. 25, 2005). Petitioner then filed the instant Motions in May and June of 2005.
III. DISCUSSION
A. Motion to Vacate, Set Aside, or Correct Sentence
Petitioner's motion is brought pursuant to 28 U.S.C. § 2255, which provides persons in federal custody a limited opportunity to collaterally attack the constitutionality, jurisdictional basis or legality of the sentence prescribed by the court. See United States v. Addonizio, 442 U.S. 178 (1979). Under 28 U.S.C. § 2255, a petitioner has one year from the date his conviction becomes final to file the motion. In this instance, Petitioner's conviction became final on November 26, 2001, when the United States Supreme Court denied his second petition for a writ of certiorari. Consequently, Petitioner's year in which to file a § 2255 motion expired on November 26, 2002. Here, the § 2255 motion was filed on May 2, 2005.
The statute of limitations on a § 2255 motion may be extended "when extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). In Kreutzer, the pro se petitioner alleged a lack of legal knowledge and resources; however, the Court held his liabilities did not overcome the statute of limitations. Id. at 463. The instant Petitioner's legal submissions clearly demonstrate a familiarity and competency with the legal process, thus making his circumstances even less "extraordinary" than those rejected as insufficient in Kreutzer. Petitioner's argument that the statute of limitations should not apply because his judgment is void is a meritless reiteration of the substance of Petitioner's Motion. Because Petitioner has failed to show that equitable tolling should apply to his Motion, it must be dismissed.
In addition, the primary argument that drives much of Petitioner's Motion has no basis in law. Petitioner states: "An essential element of aiding and abetting is that of a principal. Since there was no principal alleged or involved in this crime, [Petitioner] could not be charged with aiding and abetting." Petitioner's Brief [Docket No. 108] at xxi. Eighth Circuit law clearly holds, however, that "[i]n order to sustain the conviction of a defendant who has been charged as an aider and abettor . . . it is not necessary that the principal be convicted or even that the identity of the principal be established." Ray v. United States, 588 F.2d 601, 603-04 (8th Cir. 1978); Pigman v. United States, 407 F.2d 237, 239 (8th Cir. 1969). In Pigman, the Court noted that "[n]o sound reason has been presented why we should nor does justice command us to acquit an accused, proven to be a participant in a crime, because of insufficient evidence against a principal." 407 F.2d at 239. As a result, Petitioner's § 2255 Motion is dismissed on its merits as well as its untimeliness.
B. Motion for Immediate Release on Emergency Basis
Petitioner repeats his claims of governmental misconduct, lack of jurisdiction and lack of due process. As these same issues were raised in Petitioner's Motion for a New Trial [Docket No. 76], which this Court denied [Docket No. 85], and Petitioner fails to articulate any new legal arguments or proffer any new evidence, his Motion is without merit and must be dismissed.
C. Application in the Nature of Mandamus
Petitioner's application is brought pursuant to 28 U.S.C. § 1361. Petitioner seeks an Order of Mandamus directed to the Attorney General of the United States, ordering the removal from office and criminal investigation of AUSA Henry (Hank) Joseph Shea III and Special Prosecuting United States Attorney Tina K. Diamantopolous. In order to succeed, Petitioner must satisfy the high standard of the Mandamus Act, 28 U.S.C. § 1361, which is very narrow in scope:
An action in mandamus lies only where the defendant owes a clear, ministerial and non-discretionary duty. "[A]n act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt."Centra, Inc. v. Hirsch, 630 F.Supp. 42, 45 (E.D. Pa. 1985)quoting Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972) (en banc), rev'd on other grounds, 418 U.S. 166 (1974).
Petitioner asserts that the Attorney General has a duty to perform the requested actions, but the text of 28 U.S.C. § 542(b) clearly indicates that the Attorney General has the authority, but not the duty, to do so. ("Each assistant United States attorney is subject to removal by the Attorney General.") Furthermore, the substantive grounds on which Petitioner brings this application were previously dismissed by this Court in its Order [Docket No. 96] denying Petitioner's Motion to Disqualify Counsel [Docket No. 91]. Mandamus is thus inappropriate in the instant case.
D. Motion for Mandatory Recusal and Motion to Disqualify
"A party introducing a motion to recuse carries a heavy burden of proof; a judge is presumed to be impartial and the party seeking disqualification bears the substantial burden of proving otherwise." Pope v. Federal Exp. Corp., 974 F.2d 982, 985 (8th Cir. 1992). Petitioner has utterly failed to satisfy this "substantial burden," merely repeating his previously rejected arguments regarding jurisdiction, venue, governmental and judicial misconduct, and the necessity of charging and/or convicting a principal before a conviction for aiding and abetting can stand.
Petitioner's Motion to Disqualify AUSA Henry J. Shea raises the same issues as his previous Motion to Disqualify AUSA Shea [Docket No. 91], which was denied by this Court [Docket No. 96]. Like his first Motion to Disqualify, Petitioner's second Motion is meritless and must be dismissed.
E. Motion to Strike
Pursuant to Federal Rule of Civil Procedure 12(f), Petitioner requests that the United States Memorandum in Opposition to Defendant's Motion to Vacate [Docket No. 115] be stricken on the grounds that it constitutes an insufficient defense and is non-responsive. The Eighth Circuit has stated, however, that "[m]otions to strike under Fed.R.Civ.P. 12(f) are viewed with disfavor and are infrequently granted." Lunsford v. United States, 570 F.2d 221, 229 (8th Cir. 1977) (citing 5 Wright and Miller, Federal Practice and Procedure: Civil § 1380 at 783 (1969)). A reading of the Government's Memorandum shows it adequately addresses Petitioner's Motion. Petitioner's Motion to Strike fails to meet the high standard set forth by the Eighth Circuit and is denied.
IV. CONCLUSION
Based upon the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence [Docket No. 105] is DENIED;
2. Petitioner's Motion for Immediate Release on Emergency BasisEx Parte [Docket No. 102] is DENIED;
3. Petitioner's Application in the Nature of Mandamus [Docket No. 113] is DENIED;
4. Petitioner's Motion for Mandatory Recusal of District Judge Ann D. Montgomery [Docket No. 118] is DENIED;
5. Petitioner's Motion to Disqualify Government Attorney AUSA Henry J. Shea [Docket No. 124] is DENIED; and
6. Petitioner's Motion to Strike [Docket No. 127] is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.