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treating Rule 60(b) motion as successive petition where "all but one of the claims brought in the instant motion have been previously heard, resolved, and appealed. . . ."
Summary of this case from Grecco v. United StatesOpinion
04 Civ. 2809 (RPP), 96 Cr. 967 (RPP).
November 30, 2007
OPINION AND ORDER
Petitioner moves pursuant to Rule 60(b) of the Federal Rules of Civil Procedure seeking relief from his conviction and an "ORDER of Reversal Automatic, Overturn, Dismiss and Vacate all those wrongful charges in the indictment WITH PREJUDICE" (Mem. Objection Gov't Opp'n Rule 60(b) Mot. at 54) and a finding that Petitioner "committed no alleged prohibited acts within the Legislative, Territorial, or Admiralty Jurisdiction of the Federal United States." (Id. at 55.) For the following reasons, the motion is denied.
BACKGROUND
On June 13, 1997, a jury found Petitioner guilty of conspiring to commit money laundering in 1990 and 1991 in violation of 18 U.S.C § 371 and money laundering in violation of 18 U.S.C. § 1956(a)(2)(B). After trial, Petitioner retained new counsel who pursued discovery and investigation into whether Petitioner's rights had been violated by illegal wiretapping in Panama, whether the Government had violated its disclosure obligations, and whether agents of the U.S. Customs Service had given false testimony. Pursuant to the requests of Petitioner's counsel, the Government undertook a nationwide file review to determine if the U.S. Department of State, the Drug Enforcement Administration ("DEA"), the Customs Service, and the Central Intelligence Agency had any documents that concerned wiretapping of Petitioner or provided information about Petitioner to agents of the Customs Service at JFK Airport prior to his arrest on November 7, 1991. As a result of its search, the Government produced a few documents from DEA and State Department files that named Petitioner but were not accessed by the prosecution until after Petitioner's 1991 arrest at JFK Airport.
On February 28, 2000, Petitioner brought a motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial and an evidentiary hearing on the basis of the documents produced by the Government's search, as well as affidavits and attorney affirmations, which Petitioner deemed to present newly discovered evidence. In his motion, Petitioner claimed that his 1991 arrest was not the result of a routine random check by U.S. Customs inspectors, but was instead the result of an ongoing investigation of Petitioner that involved illegal wiretapping in Panama. On May 25, 2000, the Court denied his motion, holding that Petitioner failed to demonstrate any newly discovered evidence and that, even if Petitioner's allegations regarding wiretapping and an ongoing investigation were true, Petitioner failed to demonstrate that the arresting agents or the prosecution team used or knew about information produced by the wiretaps and investigation. United States v. Yuzary, No. 96 Cr. 967, 2000 WL 685948, at *6 (S.D.N.Y. 2000).
During sentencing on September 14, 2000, Petitioner made a lengthy statement to the Court in which he admitted his guilt of the crimes charged. (Sentencing Tr. 177-203.) Petitioner stated that, although he had not known initially that the money he laundered with co-conspirator Mordoch was drug money rather than the proceeds of legal sales of gold, he later learned from Mordoch that it was proceeds of narcotics sales. (Id. at 193-94, 199.) He admitted that he nonetheless continued to transport such proceeds to Panama because he could not extricate himself from the money laundering scheme. (Id. at 199, 201-03.) Petitioner was sentenced to 120 months in prison and 36 months of supervised release, fined $250,000 and assessed $100.
Petitioner appealed aspects of his sentencing as well as the denial of his motion for a new trial on August 21, 2001. The Court of Appeals for the Second Circuit summarily affirmed his conviction and sentence. United States v. Yuzary, 17 Fed. App'x 43 (2d Cir. 2001). Petitioner's conviction became final on November 19, 2001, when his time for filing a petition for a writ of certiorari to the U.S. Supreme Court expired.
More than two years later, on April 13, 2004, Petitioner, represented by new counsel, filed a petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction or sentence. His petition asserted ineffectiveness of both trial and sentencing counsel and that the Supreme Court's decisions inBooker and Blakely required his sentence be vacated. Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Petitioner had a one-year limitation period to bring a post-conviction application. 28 U.S.C. § 2255 (2000). Petitioner claimed that he was entitled to statutory and equitable tolling of the AEDPA statute of limitations because the Second Circuit's decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), impeded him from filing his § 2255 petition until after the Supreme Court abrogated that decision in Massaro v. United States, 538 U.S. 500 (2003). He further argued that his § 2255 motion was timely because his Rule 33 motion had requested in a footnote that it be treated as a § 2255 motion if the Court determined it more properly should be brought as a § 2255 motion.
By order dated April 20, 2005, the Court rejected Petitioner's arguments concerning the timeliness of his filing and denied his § 2255 petition as time barred under the AEDPA. Yuzary v. United States, No. 04 Civ. 2809, 2005 WL 926909 (S.D.N.Y. Apr. 20, 2005). But the Court also addressed the substance of Petitioner's claims, assuming the § 2255 petition was timely filed, and alternatively denied the claims on the merits. The Court held that, even if timely, Petitioner's claims of ineffective assistance by both his trial counsel and sentencing counsel were meritless, and Petitioner's Booker-related request to vacate his sentence failed because Booker did not apply retroactively to sentences that became final before January 12, 2005. Id.
On May 3, 2005, Petitioner filed a motion pursuant to Rule 59(e) of the Federal Rules of Civil Procedure to alter this Court's judgment denying his § 2255 petition. Petitioner argued that he was entitled to relief under Rule 59(e) because the Court did not address the footnote in his Rule 33 motion when determining the timeliness of his § 2255 petition and because the Court abused its discretion in denying Petitioner's ineffective assistance of counsel claim based on the affidavit of trial counsel without holding an evidentiary hearing. By order dated January 10, 2006, the Court denied the motion. Yuzary v. United States, No. 04 Civ. 2809, 2006 WL 59519 (S.D.N.Y. Jan. 10, 2006). The Court held that at the time Petitioner brought his Rule 33 motion, the Court had no jurisdiction to construe the Rule 33 motion as a § 2255 petition because Petitioner was not in custody on a sentence imposed by a federal court as required by 28 U.S.C. § 2255, and that it was not an abuse of discretion for the Court to decline to hold an evidentiary hearing on claims the Court determined were time barred.
On or about March 17, 2006, Petitioner filed a notice of appeal of the Court's denial of his Rule 59(e) motion. The Court of Appeals, by order dated October 12, 2006, dismissed the appeal as untimely, rejected Petitioner's request that the court reconsider its November 2005 order denying his application for permission to file a second § 2255 motion, rejected Petitioner's second application for such permission, and denied his motion for a certificate of appealability as moot. Yuzary v. United States, No. 06-1287-cr, slip op. (2d Cir. Oct. 12, 2006).
On October 13, 2005, Petitioner filed a pro se motion with the Court of Appeals for the Second Circuit requesting permission to file a second § 2255 motion. It was denied on or about November 7, 2005.
On May 10, 2007, Petitioner filed a pro se motion for relief from judgment of conviction pursuant to Rule 60(b)(4) and (6) of the Federal Rules of Civil Procedure. In his motion, Petitioner reasserts several arguments made in his Rule 33 motion, his § 2255 petition, and his Rule 59(e) motion: he argues that his trial and sentencing counsel gave ineffective assistance, claims that his conversations were unlawfully wiretapped and that perjurious testimony was introduced at his trial, challenges his sentence under Booker, and argues that his § 2255 petition should not have been denied because it was timely filed, contrary to this Court's determination on April 20, 2005. By supplement to his motion filed on May 16, 2007, Petitioner adds the additional argument that his conviction is void because it was premised on citations to the U.S. Code, rather than citations to the U.S. Statutes at Large.
DISCUSSION
Rule 60(b) allows a party to seek relief from a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason justifying relief from the operation of the judgment. Fed.R.Civ.P. 60(b). Any motion seeking relief under Rule 60(b) must be made within a "reasonable time," and motions stating reasons 60(b)(1), (2), or (3), must be made "not more than one year after the judgment, order or proceeding was entered or taken." Id. In considering whether a Rule 60(b) motion is made within a reasonable time, the district court must scrutinize the particular circumstances of the case and balance the interest in finality against the reasons for the delay. PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983).
As the Supreme Court has recognized, Rule 60(b) applies in habeas corpus cases and may be used to reopen a habeas proceeding. See Gonzalez v. Crosby, 545 U.S. 524, 534 (2005) (stating that "Rule 60(b) has an unquestionably valid role to play in habeas cases" and giving examples). When a habeas petitioner files a Rule 60(b) motion, however, the district court must determine whether the motion is, in substance, a successive habeas petition under § 2244 of the AEDPA and thus subject to the AEDPA's requirements. If such is the case here, the applicable provision of the AEDPA would require that the successive habeas petition be pre-certified by the Court of Appeals to contain newly discovered evidence or a new rule of constitutional law. 28 U.S.C. § 2255.
In Gonzalez v. Crosby, the Supreme Court explained the circumstances under which a motion seeking to reopen a habeas proceeding should be treated as a successive habeas petition under the AEDPA, and not a Rule 60(b) motion. Regardless of how it is labeled, a motion is treated as a successive habeas petition when it
In Gonzalez v. Crosby, the petitioner was in state custody rather than in federal custody as is Petitioner here. ThusGonzalez addresses whether the petitioner's motion for relief from judgment was a successive habeas petition under 28 U.S.C. § 2244(b) and subject to the requirements in § 2244(b)(2). Here, the Court considers whether Petitioner's motion is a successive habeas petition under 28 U.S.C. § 2244(a) and subject to the pre-certification requirement in § 2255. But the holding ofGonzalez is no less applicable.
seeks to add a new ground for relief . . . [or] attacks the federal court's previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.Gonzalez, 545 U.S. at 532 (footnote omitted). On the other hand, a motion is appropriately denominated as a Rule 60(b) motion when "neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state [or federal] conviction." Id. at 533. Accordingly, in Gonzalez, the Supreme Court held that the petitioner's Rule 60(b) motion should not have been construed as a successive habeas petition because it challenged only the district court's failure to reach the merits due to a misapplication of the AEDPA statute of limitations. Id. at 538.
By "on the merits," the Supreme Court was referring to "a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief" under the AEDPA. Gonzalez v. Crosby, 545 U.S. 524, 532 n. 4 (2005).
When presented with a Rule 60(b) motion that merely asserts or reasserts claims of error in the movant's underlying conviction or sentence, a district court has two procedural options: "(i) the court may treat the Rule 60(b) motion as `a second or successive' habeas petition, in which case it should be transferred to [the Court of Appeals] for possible certification, or (ii) the court may simply deny the portion of the motion attacking the underlying conviction `as beyond the scope of Rule 60(b).'" Harris v. United States, 367 F.3d 74, 82 (2d Cir. 2004) (quoting Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002)).
None of the arguments Petitioner raises in his motion for relief from judgment can be construed as within the scope of Rule 60(b) under Gonzalez because they merely reassert or assert claims attacking his underlying conviction and sentence. Specifically, Petitioner reasserts that the assistance of his trial and sentencing counsel was ineffective and challenges his sentence under Booker. Petitioner previously raised these two claims in his § 2255 petition challenging his conviction and sentence, and the Court denied them on the merits in its 2005 judgment on Petitioner's § 2255 petition. Petitioner's reassertion of these claims "seeks to revisit the federal court's denial on the merits of a claim for relief," and as such, this part of Petitioner's motion should be treated as a successive habeas petition. Gonzalez, 545 U.S. at 534.
Petitioner's instant motion also reasserts the argument that the filing of his § 2255 petition was timely because the Second Circuit's decision in Billy-Eko warranted tolling of the AEDPA statute of limitations and because his Rule 33 motion had requested in a footnote that it be treated as a § 2255 motion if the Court determined it appropriate. This argument is an exact replication of the timeliness argument made in Petitioner's § 2255 petition, which this Court rejected in determining that the petition was time barred. As Petitioner asserts no new challenges or changes of law with respect to the Court's resolution of the timeliness issue, this claim is res judicata. In addition, the Court did not end its analysis with the conclusion that Petitioner's § 2255 petition was time barred, but rather went on deny Petitioner's habeas claims on the merits in an alternative holding. See Yuzary v. United States, No. 04 Civ. 2809, 2005 WL 926909, at *4-8 (S.D.N.Y Apr. 20, 2005) (resolving Petitioner's ineffective assistance of counsel andBooker claims). Petitioner was not precluded from a merits determination of his claims by the Court's denial of his § 2255 petition on statute-of-limitations grounds, as was the petitioner in Gonzalez. See Gonzalez, 545 U.S. at 527. Accordingly, Petitioner's motion for relief on the timeliness ground should be treated as a successive habeas petition.
In Gonzalez, the petitioner moved for relief from judgment after the Supreme Court issued a decision that overturned the Eleventh Circuit's rule based on which the Eleventh Circuit had denied the petitioner's petition as untimely. Gonzalez, 545 U.S. at 537. The Supreme Court concluded that a change in the law, even one that would have made the difference in whether a petition was time barred, did not constitute an "extraordinary circumstance" justifying Rule 60(b) relief. Id. at 536-37.
It was critical in Gonzalez that the petitioner was precluded from a merits determination of his habeas claims. See Gonzalez, 545 U.S. at 538 ("A motion that, like petitioner's, challenges only the District Court's failure to reach the merits does not warrant . . . treatment [as a successive habeas petition]. . . ."); id. at 532 n. 4 (explaining that a movant is not making a habeas corpus claim "when he merely asserts that a previous ruling which precluded a merits determination was in error").
Finally, Petitioner's motion asserts that alleged illegal wiretapping and perjurious testimony warrant vacation of his conviction and that citations to the U.S. Code rather than the Statutes at Large render his conviction void. These arguments should also be treated as a successive habeas petition because Petitioner is seeking to add to his § 2255 petition additional claims that he is entitled to habeas relief. The allegations of wiretapping and perjury were not made in Petitioner's § 2255 petition, though they were asserted in his Rule 33 motion, and the argument concerning citations to the U.S. Code is entirely new. As the Supreme Court stated in Gonzalez, "[a] motion that seeks to add a new ground for relief . . . will of course qualify [as a successive habeas corpus application]." Id. at 532. Petitioner may not, by using Rule 60(b) to present new claims, circumvent the AEDPA's requirement that a successive habeas petition be pre-certified by the Court of Appeals. Cf. id. (stating that using Rule 60(b) to present a new claim "impermissibly circumvent[s]" the pre-certification and other requirements under 28 U.S.C. § 2244(b)).
Petitioner's Rule 60(b) motion, in its entirety, warrants treatment as a successive habeas petition. Since all but one of the claims brought in the instant motion have been previously heard, resolved, and appealed, it would be a poor use of judicial resources to transfer this motion to the Court of Appeals for possible certification. Instead, the motion is denied in its entirety as beyond the scope of Rule 60(b).
CONCLUSION
For the foregoing reasons, Petitioner's Rule 60(b) motion for relief from judgment (filed as No. 96 Cr. 967, Docs. #101, #102) is denied as beyond the scope of Rule 60(b). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).
IT IS SO ORDERED.