Opinion
Nos. 03 Civ. 1852 (SAS), 97 CR 639 (SAS).
November 22, 2004
George W. Galgano, Jr., Esq., Galgano Sullivan, White Plains, NY, Michael D. Pinnisi, Pinnisi Anderson, Ithaca, NY, Patrick R. Bennett, Loretto, PA, for Petitioner.
Lisa Korologos, Roberto Finzi, Marc Litt, Assistant United States Attorneys United States Attorney's Office, Southern District of New York, New York, NY, for Respondent.
OPINION AND ORDER
I. INTRODUCTION
Patrick Bennett ("Bennett" or "petitioner"), moves under 28 U.S.C. § 2255 to vacate, set aside or correct the 22-year sentence he received on June 5, 2002. Bennett asserts that both his trial and appellate counsel were ineffective. Specifically, he raises three principal grounds for relief: (1) the cumulative effect of nineteen prejudicial errors and omissions by his trial counsel deprived him of his Sixth Amendment right to the effective assistance of counsel; (2) his appellate counsel's omission of an obvious jury instruction error denied him the effective assistance of appellate counsel; and (3) his appellate counsel's failure to raise the "cumulative errors" of his trial counsel on direct appeal denied him the effective assistance of appellate counsel. The Government argues that Bennett's claims of ineffective assistance of counsel, both at trial and on appeal, are frivolous.
Bennett, although represented by counsel, has also submitted several pro se motions and documents during the pendency of his petition before the Court. In his first motion and several subsequent letters, Bennett urges the Court to grant him: (1) an evidentiary hearing pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, and (2) bail to prepare for and attend the hearing. Bennett has also moved to supplement or amend his section 2255 petition in light of the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004), and has requested appointment of co-counsel to represent him on that issue. Finally, Bennett has submitted various documents in which he seeks to further supplement or amend his reply to the Government's opposition papers, as well as a motion to recuse Judge John S. Martin, Jr. from this action. The Government has only responded to Bennett's request for appointment of co-counsel regarding the Blakely issue. This Opinion addresses Bennett's pro se motions and requests.
For the reasons set forth below, Bennett's pro se motions and requests are denied. However, he is given leave to renew hisBlakely issues following the Supreme Court's ruling in United States v. Booker, No. 04-104, 2004 WL 1713654 (U.S. Aug. 2, 2004) and United States v. Fanfan, No. 01-105, 2004 WL 1713655 (U.S. Aug. 2, 2004).
II. BACKGROUND
After two jury trials, Patrick Bennett was convicted of securities fraud, bank fraud and money laundering before Judge Martin, formerly of this Court. The jury in the second trial also returned a forfeiture verdict of $109,088,889.11. Bennett was originally sentenced to thirty years in prison, which included an upward departure of ten years based on his wife's refusal to surrender certain properties allegedly purchased with the proceeds of his crimes.
This case was transferred to me on October 28, 2003, following Judge Martin's resignation.
Petitioner was also convicted of obstruction of justice and perjury in the first trial. He was sentenced to five years' imprisonment on those charges, to run concurrently with his thirty-year sentence. Petitioner did not appeal that conviction or sentence.
Bennett appealed his convictions and sentence on the fraud and money laundering counts to the United States Court of Appeals for the Second Circuit. On appeal, the Second Circuit affirmed Bennett's convictions, but vacated his sentence on the ground that the District Court had improperly imposed the ten-year upward departure on the basis of Bennett's wife's refusal to surrender properties. See United States v. Bennett, 252 F.3d 559 (2d Cir. 2001); United States v. Bennett, No. 00-1330 (2d Cir. May 31, 2001) (unpublished summary order). The Second Circuit remanded the case back to the District Court for resentencing consistent with its decision.
At re-sentencing, Judge Martin imposed a sentence of twenty-two years in custody, which included a two-year upward departure based on Bennett's role of transferring assets to put them out of reach of his creditors. Bennett appealed his new sentence to the Second Circuit; but while the appeal was pending, he filed the instant section 2255 petition challenging his judgment of conviction based on the June 5, 2002 sentence. On July 21, 2003, the Government submitted a memorandum opposing Bennett's petition. By order dated September 18, 2003, the Second Circuit affirmed Bennett's new sentence. See United States v. Bennett, No. 02-1379 (2d Cir. Sept. 18, 2003) (unpublished summary order). On February 10, 2004, Bennett submitted a reply to the Government's opposition.
II. DISCUSSION
A. Motion for Evidentiary Hearing and Bail
On December 25, 2003, Bennett submitted a pro se motion entitled "Application for Enlargement of Bail," with an accompanying letter requesting that the Court hold an immediate status conference to schedule a Rule 8 evidentiary hearing and grant his bail application. See Petitioner's Application for Enlargement of Bail ("Pet. App. Bail"); Petitioner's Letter ("Pet. Let.") dated 12/25/03. Since the filing of that application, Bennett has repeatedly urged the Court to hold a status conference in order to schedule an evidentiary hearing and discuss his bail application. The Government has not responded to Bennett's requests for an evidentiary hearing or bail.
Bennett argues that an evidentiary hearing is necessary to fully develop his ineffective assistance of counsel claims which are supported by his own affidavit and that of a certified public accountant. Bennett argues that he and the accountant can best explain the evidence by testifying at an evidentiary hearing regarding its significance, its availability prior to trial, and the probability of a more favorable verdict if the evidence had been properly presented to a jury. See Pet. Let. dated 11/12/03. Bennett claims that he possesses "valuable first hand knowledge" of this complex case because of his daily involvement in the "business aspect" of his criminal case and can provide significant testimony regarding the alleged prejudicial errors of both his trial and appellate attorneys. Id. He further contends that his live testimony is essential to fully develop the record, particularly as I was not the trial judge and would have to rely on a "cold record." Pet. Let. dated 4/21/04.
Bennett further states in his motion that his section 2255 application "raises several substantial Sixth Amendment [c]onstitutional claims of ineffective assistance of counsel, and this case presents a number of unusual and exceptional circumstances that in combination, clearly distinguish [his] case from that of a typical habeas petitioner, thus satisfying theOstrer test for bail." Pet. App. Bail at 2; see id. at 34-35. Bennett claims he has been extremely involved in the research and preparation of his section 2255 petition and that without his direct and personal involvement his attorney could not thoroughly prepare for a Rule 8 evidentiary hearing. See id. at 12-13. He alleges that throughout his two trials, his criminal defense attorneys relied on him heavily, particularly with respect to the business aspects of his case, which involved complex financial transactions and intricate accounting methodology and procedures. See id. at 12. Bennett, who is presently incarcerated at the Federal Correctional Institution at Loretto, Pennsylvania, further contends that his ability to effectively assist with his section 2255 petition would be hampered by his continued incarceration. See id. at 13. He argues that the situation cannot be remedied by transferring him to a closer facility such as the MCC. See id. Bennett claims that because of the voluminous record involved (more than 100 boxes of documents presently located in Oneida, New York), it would be impossible to store and access the necessary documents at any prison facility. In addition, restrictions on telephone calls and mail would further impede his ability to effectively communicate with his counsel even if he is transferred to a closer facility. Bennett also stresses his strong family and community ties and states that he is "neither a risk of flight nor a danger to the community." Id. at 14. He contends that his request for bail to prepare for the Rule 8 hearing should be granted because there is a high probability that his section 2255 petition will be successful on the merits, the unusual nature of his complex case, and that exceptional circumstances exist requiring his personal participation. See id. at 33-38.
Bennett's attorney, George Galgano, Jr., reiterates these same arguments in support of Bennett's requests for a Rule 8 evidentiary hearing and bail. See Affidavit of George Galgano in Support of Motion for Hearing and Bail ("Galgano Aff."); Galgano Let. dated 3/8/04. Galgano claims that he has reviewed Bennett's pro se application for bail and concurs with Bennett's assessment that his "direct and personal assistance is vital for a complete preparation for a hearing." Galgano Aff. at ¶¶ 9-10. He states that prior to the requested hearing, he must meet with Bennett to review the voluminous records and prepare for the examination of Bennett's trial and appellate attorneys.See id. at ¶ 11. Finally, Galgano offers to act as the "Designated Person" while Bennett is on bail. Id. at ¶ 16.
1. Request for Rule 8 Evidentiary Hearing is Denied
Section 2255 requires the district court to hold a "prompt hearing" on a petitioner's claims "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. In Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001), the Second Circuit made it clear that it is within a district court's discretion to determine whether an evidentiary hearing is warranted. Although indicating a preference that a district court not summarily dismiss a habeas petition on its face unless it is "clearly bereft of merit," the Second Circuit noted that an evidentiary hearing is not needed in every case. Id. In order to obtain a hearing, a petitioner must "demonstrate a colorable claim," and the court must evaluate whether a hearing would "offer any reasonable chance of altering its view of the facts." Id. at 84, 86.
Even when a hearing of some kind is warranted, a prisoner is not automatically entitled to appear in court for a full-blown evidentiary hearing. The Supreme Court has stated that the need for a hearing does not
imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense. Indeed, the statute itself recognizes that there are times when the allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.Machibroda v. United States, 368 U.S. 487, 495 (1962). See also Chang, 250 F.3d at 85. Section 2255 expressly provides that "[a] court may entertain and determine such motion without requiring the production of the prisoner at the hearing." 28 U.S.C. § 2255.
The Rules Governing Section 2255 Proceedings allow a district court a variety of means to expand the record without the need for a full-blown evidentiary hearing. See Fed.R. Governing Section 2255 Proceedings 4, 7. For example, the court can request documentary evidence, letters or affidavits from parties with knowledge of the issues that are being challenged, including conversations between the petitioner and his attorney, thereby rendering a hearing unnecessary. A court has the discretion to take a "middle road" that avoids "the delay, the needless expenditure of judicial resources, the burden on trial counsel and the government, and perhaps the encouragement of other prisoners to make similar baseless claims" resulting from a full-blown evidentiary hearing. Chang, 250 F.3d at 86. See also Pham v. United States, 317 F.3d 178, 184 (2d Cir. 2003) ("Our precedent disapproves of summary dismissal of petitions where factual issues exist, but it permits a 'middle road' of deciding disputed facts on the basis of written submissions.") (citation omitted).
No evidentiary hearing is required here to adjudicate Bennett's petition. Bennett claims that a hearing is needed so that he and a certified public accountant can explain the significance of certain evidence that he believes his trial counsel did not fully understand. However, he has submitted both his own affidavit and an affidavit from his certified public accountant, Harry L. Hood, which presents the information he would like the Court to consider. See Volume II of Appendix to Petitioner's § 2255 Motion at A774-A847. In light of the voluminous materials submitted to supplement this petition, the personal testimony of Bennett and Hood "would add little or nothing to the written submissions." Chang, 250 F.3d at 86. The record in this case appears to be sufficient to resolve the factual issues presented in Bennett's petition. Should the need arise, the Court will request additional written submissions. See id. Therefore, Bennett's requests for an evidentiary hearing and a status conference to schedule the hearing are denied.
According to Hood's affidavit, he met Bennett in 1996, sometime after the events giving rise to this case. He claims that he had no previous relationship with Bennett or his companies, and that he assisted Bennett and his wife in the preparation of their personal income tax returns. See Volume II Appendix to Pet. § 2255 Mot. at A781-A782.
2. Application for Enlargement of Bail is Denied
Federal courts have the "inherent power to enter an order affecting the custody of a habeas petitioner who is properly contesting the legality of his custody." Ostrer v. United States, 584 F.2d 594, 596 n. 1 (2d Cir. 1978). See also Mapp v. Reno, 242 F.3d 221, 226 (2d Cir. 2001). However, "[t]he standard for bail pending habeas litigation is a difficult one to meet." Grune v. Coughlin, 913 F.2d 41, 44 (2d Cir. 1990). This power may only be exercised in special cases. Mapp, 242 F.3d at 226. A petitioner challenging his sentence "should be granted bail only in unusual cases or when extraordinary or exceptional circumstances exist which make the grant of bail necessary to make the habeas remedy effective." Ostrer, 584 F.2d at 596 n. 1 (internal quotation marks and citations omitted).
In determining the propriety for granting bail, courts consider three factors:
(1) Are substantial claims set forth in the habeas corpus petition?
(2) Is there a demonstrated likelihood the petition will prevail?
(3) Are there extraordinary circumstances attending the petitioner's situation which would require the grant in order to make the writ of habeas corpus effective, presumably if granted?Jackson v. Bennett, No. 01 Civ. 8971, 2002 WL 126679, at *1 (S.D.N.Y. Jan. 30, 2002) (citing Richard v. Abrams, 732 F. Supp. 24, 25 (S.D.N.Y. 1990)). Bennett has failed to make the showing required to warrant a grant of bail.
Bennett's primary argument in support of his bail application is that his personal assistance is vital to prepare for and attend the requested evidentiary hearing. Because I have determined that an evidentiary hearing is not warranted, Bennett's request for bail must also be denied. Furthermore, although Bennett's section 2255 petition arguably presents substantial claims, he has not demonstrated that he is likely to succeed on the merits of his ineffective assistance of counsel claims or provided evidence of extraordinary circumstances that would require the granting of bail to make the habeas corpus remedy effective. Bennett's efforts to distinguish his case from other habeas motions by emphasizing the central role he played in his defense are insufficient to meet the unusual, extraordinary or exceptional circumstances standard necessary for the granting of bail during the pendency of a habeas petition. See Grune, 913 F.2d at 44 ("The petitioner must demonstrate that 'the habeas petition raise[s] substantial claims and that extraordinary circumstances exist that make the grant of bail necessary to make the habeas remedy effective.'") (quoting Iuteri v. Nardoza, 662 F.2d 159, 161 (2d Cir. 1981) (alterations in original)). Accordingly, petitioner's motion for bail is denied.
B. Bennett's Blakely Claims
1. Motion to Supplement or Amend Petition and Request for Immediate Release on Bail
On June 26, 2004, Bennett submitted a pro se motion to supplement his petition pursuant to Rule 15 of the Federal Rules of Civil Procedure, based on the Supreme Court's recent decision in Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Bennett alleges that Blakely requires that his sentence be vacated because he was denied his Sixth Amendment right to have a jury determine, beyond a reasonable doubt, facts that increased his sentence. See Petitioner's Motion to Supplement at 1 ("Pet. Mot. Supp."); Pet. Let. dated 6/26/04. Bennett now seeks to be immediately released on bail. He contends that he remains incarcerated solely on the enhancements imposed under the United States Sentencing Guidelines, and that if his sentence is invalidated under Blakely, his new sentence would be for time served thereby justifying his request for immediate release on bail. See Pet. Let. dated 6/26/04; Pet. Let. dated 10/15/04. On July 8, 2004, Bennett filed a "Memorandum in Support for Supplemental/Amended Pleading Ground Four and Request For Equitable Tolling" in which he reiterates his arguments under Blakely. He also argues that his Blakely claim is timely since it was presented within two days of the Supreme Court's decision. The Government has not responded to petitioner's motion to supplement or amend.
Bennett's request to supplement the instant section 2255 petition based on Blakely is denied, with leave to renew the claims should the Supreme Court rule that Blakely is applicable to the facts of this case. In United States v. Mincey, 380 F.3d 102, 106 (2d Cir. 2004), the Second Circuit held that "[u]nless and until the Supreme Court rules otherwise, the law in this Circuit remains as stated." Thus, until the Supreme Court holds that Blakely invalidates the Guidelines, in whole or in part, this Court cannot consider Bennett's Blakely claims. Presently pending before the Supreme Court are two cases, United States v. Booker and United States v. Fanfan, both argued on October 4, 2004, which put the question squarely before the Supreme Court. If appropriate, Bennett may file a motion to supplement his section 2255 petition following the Supreme Court's decisions in Booker and Fanfan. Furthermore, in light of the foregoing, Bennett's request for immediate release on bail is denied.
I do not address the timeliness of Bennett's Blakely argument, whether Blakely would retroactively apply to this case should the Supreme Court hold that Blakely is applicable to the federal sentencing guidelines, or the merits of any other issues concerning Bennett's Blakely claim. However, I note thatBlakely is essentially an extension of the rules expressed inApprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002). See Blakely, ___ U.S. ___, 124 S. Ct. at 2536. Like Apprendi and Ring, the Blakely rule appears to merely "allocate decisionmaking authority" with respect to sentencing, rather than stating a new substantive rule that may upset a judgment of conviction on collateral review.See Schirro v. Summerlin, ___ U.S. ___, 124 S. Ct. 2519, 2523 (2004) (holding that Ring, which applied Apprendi to require that aggravating factors leading to the imposition of a death sentence must be found by a jury beyond a reasonable doubt, was a new procedural rule that does not apply retroactively to cases already final on direct review). See also Coleman v. United States, 329 F.3d 77, 82 (2d Cir. 2003) (Apprendi "does not apply retroactively to initial section 2255 motions for habeas relief."); Simpson v. United States, 376 F.3d 679, 681-82 (7th Cir. 2004) (finding that even if Blakely announced a new constitutional rule, the Supreme Court has not made it applicable to cases on collateral review); In re Dean, 375 F.3d 1287, 1290 (11th Cir. 2004) (strongly suggesting that Blakely rule does not apply retroactively on collateral review); Concepcion v. United States, 328 F. Supp. 2d 372, 374 (E.D.N.Y. 2004) (Supreme Court has not ruled that Blakely applies retroactively to cases on collateral review); Rosario-Dominguez v. United States, No. 04 Civ. 4675, 2004 WL 1814021, at *9 n. 3 (S.D.N.Y. Aug. 16, 2004) (Blakely does not apply on collateral review); Garcia v. United States, No. 04-CV-0465, 2004 WL 1752588, at *5 (N.D.N.Y. Aug. 4, 2004) ("[B]ecause Apprendi does not apply retroactively to collateral attacks and Blakely is an extension ofApprendi, Blakely is similarly limited to prospective application.").
2. Appointment of Counsel for Blakely Issue
By letter dated July 23, 2004, Bennett's attorney, George Galgano, informed the Court that Michael Pinnisi has agreed to appear as co-counsel in connection with Bennett's motion to supplement his petition and his application for bail. See Galgano Let. dated 7/23/04. On July 27, 2004, and again on August 13, 2004, Mr. Pinnisi formally wrote the Court and asked to represent Bennett in connection with the sentencing issues arising from Blakely and any related bail issues, and indicated that Mr. Galgano would continue to serve as co-counsel in other matters in the case.See Pinnisi Lets. dated 7/27/04 and 8/13/04. In the July 27, 2004 letter, Mr. Pinnisi noted that he is not a member of the Southern District's Criminal Justice Act ("CJA") Panel, however, he is "willing to proceed pro bono publico" on Bennett's behalf.
On August 18, 2004, the Government wrote a letter objecting to the possibility of using CJA funds to pay any part of Mr. Pinnisi's fee. The Government states that it takes no position with respect to Mr. Pinnisi's request that he be allowed to serve as Bennett's pro bono counsel, but that Bennett has not shown that he is "financially unable to obtain adequate representation" to meet the procedural requirements for appointment of CJA counsel. The Government further contends that even if Bennett met the requirements for CJA counsel, Mr. Pinnisi's lack of membership on the Southern District's CJA panel should prevent his appointment as CJA counsel and the use of CJA funds. Finally, the Government argues that Bennett cannot show at this time that the appointment of CJA counsel is necessary in light of the Second Circuit's decision in Mincey.
In response to the Government's letter, Mr. Pinnisi sent another letter to the Court on August 19, 2004, stating that he is concerned about "potential outof-pocket expense this representation would entail" since he resides in Ithaca and anticipates significant traveling and other costs. He contends that appointment to the CJA panel would alleviate some of these costs. Mr. Pinnisi further argues that Bennett has shown the need for financial assistance and Bennett's sentence was not supported by a jury verdict, thereby making application of theBlakely rule likely. Mr. Pinnisi again notes that although he is not presently a member of any CJA panel, he was previously on the CJA panel of both the Second Circuit and the Northern District, and he is not aware of any barrier to his appointment to this Court's panel. By letter dated September 9, 2004, Bennett informed the Court that he is "financially unable to obtain adequate representation" as stated by Mr. Pinnisi. Pet. Let. dated 9/9/04.
To the extent Bennett seeks the appointment of Mr. Pinnisi as CJA counsel with access to CJA funds, his request is construed as a motion for appointment of counsel pursuant to 18 U.S.C. § 3006A. Although a petitioner seeking to challenge his conviction under section 2255 has no constitutional right to the assistance of counsel, see Pennslyvania v. Finley, 481 U.S. 551, 555 (1987), this Court has discretion under the Criminal Justice Act ("CJA") to appoint counsel to any person seeking relief under § 2255 who is "financially unable to obtain adequate representation" and such appointment is in the interests of justice. 18 U.S.C. § 3006A(a). In Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986), the Second Circuit set forth the factors courts should consider in deciding whether to grant a pro se plaintiff's request for the appointment of counsel. As a threshold requirement, the court must decide whether the plaintiff's claim "seems likely to be of substance." Id. at 61. If the plaintiff meets this requirement, the court must next consider factors including:
the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why the appointment of counsel would be more likely to lead to a just determination.Id. at 61-62. The same standards apply in deciding whether to appoint counsel for a petitioner in a habeas proceeding. See Tyson v. Keane, No. 96 Civ. 8044, 1997 WL 189125, at *1 (S.D.N.Y. Apr. 18, 1997).
At this time, the interests of justice do not require the appointment of Mr. Pinnisi as CJA counsel. Bennett's Blakely claims raise complex legal questions that, in the language ofHodge, "are likely to be of substance." However, in light of the my decision not to address the Blakely issues until the Supreme Court has ruled in Booker and Fanfan, Bennet's request for the appointment of Mr. Pinnisi as CJA counsel is denied without prejudice to refiling after the Supreme Court decides Booker and Fanfan.
Should Bennett choose to renew his request for appointment of CJA counsel, he must complete an application for appointment of counsel, along with an in forma pauperis application setting forth facts showing that he is indigent. If Bennett renews hisBlakely claims and is approved for the appointment of CJA counsel, Mr. Pinnisi may then ask the Court to appoint him to represent Bennett.
C. Motion for Recusal of Judge Martin
Subsequent to the filing of this section 2255 application, petitioner submitted a motion to recuse Judge Martin from this case. In that motion, he contends that the recusal of Judge Martin is necessary because of an op-ed article published in the New York Times in which Judge Martin manifested a "disdain for the authority of Congress and lack of respect for the laws enacted by Congress." Pet. Let. dated 8/11/03 attached to Motion for Recusal.
Bennett submitted a similar motion in an ancillary proceeding of third party claims relating to an Order of Forfeiture entered against him by Judge Martin. By order dated April 15, 2004, I entered an Order denying Bennett's motion to recuse Judge Martin within the ancillary forfeiture proceedings. See United States v. Bennett, No. 97 CR 639, 2004 WL 829015, at *5 (S.D.N.Y. Apr. 15, 2004). The Order stated that Bennett's motion to recuse is moot since Judge Martin is no longer a federal judge. Id. Bennett's motion to recuse Judge Martin from this habeas action is also denied for the same reason.
D. Bennett's Remaining Pro Se Miscellaneous Submissions
Bennett has also submitted various letters and other documents in which he seeks to further supplement or amend his petition. The Government has not responded to these submissions.
In a letter dated April 13, 2004, Bennett alleges that the Government is attempting to take certain positions which it is barred from taking. Thus, in further support of applications related to the ancillary proceedings and the merits of his section 2255 motion, he attaches an "Addendum" with an exhibit to the letter. In the "Addendum," petitioner argues that the Government is barred from taking certain positions in its opposition to his section 2255 motion that would require the Court to ignore, or find inaccurate, controlling Second Circuit precedent. See Pet. Addendum attached to Pet. Let. dated 4/14/04. Bennett attaches as Exhibit A to the Addendum a document entitled "This Court Should Invoke Judicial Estoppel to Reject the Government's Improper Attempt to Change its Position From Those Taken Before the Second Circuit Court of Appeals." Id.
In furtherance of his efforts to buttress his argument that the Government is seeking to take different positions than those it took on appeal, Bennett provides additional documents. In a letter dated April 28, 2004, he attaches three documents that he asks the Court to review: (1) "Inaccurate, Misleading and Contested Facts from the Government's 7-21-03 Opposition Memo of Law Preliminary, Background, and Procedure History Sections"; (2) "Concessions of and Improper Positions of the Government in 2255 Response"; and (3) the aforementioned "Addendum." Bennett also provides a chart further detailing his ineffective assistance of counsel claims, which he attaches to a letter dated April 19, 2004. In addition, in a letter dated June 28, 2004, petitioner brings to the Court's attention more authorities relating to his ineffective assistance of counsel claims.
Bennett's miscellaneous pro se submissions are construed as a motion to amend his reply to the Government's opposition to his section 2255 petition. The motion to supplement the reply is denied. Bennett fails to raise any new issues or grounds in his miscellaneous submissions, seeking only to rebut the Government's arguments. The Government filed its opposition to Bennett's petition on July 21, 2003, two months before the Second Circuit's decision on Bennett's re-sentencing was issued. Bennett has had ample opportunity to state his grounds for relief, and his recent submissions are simply efforts to point out alleged errors in the Government's July 21, 2003 opposition, which Bennett responded to on February 10, 2004. The new submissions will not be considered part of the record in this case. Bennett is denied leave to supplement his reply with his miscellaneous submissions.
E. No Further Pro Se Submission
Bennett has submitted numerous pro se motions and letters although he is represented by counsel in the instant matter. As a result, there are several duplicate filings and a number of letters requesting the same action from both petitioner and his attorney. To alleviate further improper filings, multiple submissions and the resulting confusion, I direct Bennett to file all future papers through his attorney, George Galgano, Jr. The Court will no longer accept Bennett's pro se submissions.
III. CONCLUSION
For the foregoing reasons, Bennett's motion for an evidentiary hearing and bail are denied. His motion to supplement his petition in light of Blakely and his request for immediate bail are also denied, with leave to file supplementary papers once the Supreme Court decides Booker and Fanfan. Bennett's request for appointment of Mr. Pinnisi as CJA counsel is denied without prejudice. Should Bennett file a supplement to his petition on the Blakely issues, he may then submit an application for the appointment of CJA counsel for representation on those issues. All other motions and requests are denied as lacking merit. Bennett is further prohibited from directly contacting Chambers and is directed to submit all future matters through his attorney.
SO ORDERED: