Opinion
00 CIV. 7284 (DLC).
July 25, 2007
MEMORANDUM OPINION AND ORDER
Defendant Tang Xue Dan ("Tang") filed a motion pursuant to Rule 60(b), Fed.R.Civ.P., on September 15, 2006. The motion is denied.
Tang was arrested on April 29, 1993. On July 31, 1998, Tang's application to withdraw a previously entered plea was granted, and he pleaded guilty pursuant to a cooperation agreement to a four count information which charged him with participating in a racketeering enterprise identified as the Fuk Ching Gang and with murdering two people.
On January 20, 1999, the Honorable John S. Martin, to whom the case was then assigned, sentenced Tang principally to thirty years' imprisonment. The Government had moved pursuant to Section 5K1.1 for the Court to consider Tang's substantial assistance. In imposing sentence, the Court observed that it had never seen a more cold-blooded murder and that but for Tang's cooperation the Court would have imposed a sentence that insured that Tang would never get out of prison. Tang had committed two homicides, including one in which he shot a young woman twice who begged him for her life.
The conviction was affirmed on December 27, 1999. On September 27, 2000, Tang filed a petition for writ of habeas corpus pursuant to Section 2255, arguing that his plea was induced by promises from the Government and his attorney and that he had been denied effective assistance of counsel. Judge Martin denied the petition on March 12, 2001. Dan v. United States, No. 93 Cr. 783 (JSM), 2001 WL 243219 (S.D.N.Y. March 21, 2001). Tang did not appeal.
On September 15, 2006, Tang filed this motion pursuant to Rule 60(b)(6) to vacate the denial of the Section 2255 petition on the ground that Judge Martin failed to consider Kastigar v. United States, 406 U.S. 441 (1972), in denying his petition. Tang asserts that Kastigar precluded the Government from prosecuting Tang for crimes to which he confessed during proffers to the Government and while cooperating with the Government. On February 12, 2007, the Government opposed the motion, and on February 26, Tang replied. By that time, Judge Martin had left the federal bench, and on March 1, the case was assigned to this Court.
A motion pursuant to Rule 60(b) brought by a criminal defendant is only available when the motion "attacks the integrity of the habeas corpus proceeding rather than the underlying criminal conviction." Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2001). When a Rule 60(b) motion attacks the underlying conviction, the motion may be transferred to the Court of Appeals as a second or successive petition, assuming that the defendant has been given advance notice of that course of action and an opportunity to withdraw the motion, or it may be denied.Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002). This motion attacks the validity of the underlying conviction, and is not properly brought as a Rule 60(b) motion. To the extent this motion could properly be considered a Rule 60(b) motion, it would be denied as untimely.
Conclusion
The Rule 60(b) motion by Tang Xue Dan, filed on September 15, 2006, is denied.
SO ORDERED: