Opinion
Nos. 97 Cr. 639-1 (PAC), 03 Civ. 1852 (PAC).
June 23, 2006
MEMORANDUM DECISION AND ORDER
Patrick Bennett ("Bennett" or "petitioner") seeks reconsideration of the memorandum decision and order denying his motion for relief pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct the 22-year sentence he received on June 5, 2002. He argues principally that the Court misapprehended the law in the Second Circuit concerning the bar to relitigation.
See Bennett v. United States, No. 03 Civ. 1852, 2006 U.S. Dist. LEXIS 12395 (S.D.N.Y. Mar. 21, 2006).
Bennett takes issue with the Court's reliance on United States v. Chin, 622 F.2d 1090 (2d Cir. 1980), cert. denied, 450 U.S. 923 (1981), and with its emphasis on "Chin's use of the term `exonerates' as a bright-line condition for relief from the relitigation bar" (Petr.'s Mem. at 2). Bennett argues that:
Chin considered a petition for error coram nobis, and not a § 2255 petition. Consequently, Chin does not, and cannot, itself stand for the proposition that exoneration is required in a § 2255 case. Rather, because Chin considered relief after completion of sentence, it would by necessity be concerned only with exoneration, as sentence had become moot."
(Id.) Bennett concludes that "Petitioner could not find a single reported case in the federal system — other than the Order — that required exoneration in order to permit relitigation in a § 2255 proceeding following a change in controlling law" (id.).
Bennett need not have looked further than the Second Circuit's decision in United States v. Sanin, 252 F.3d 79 (2d Cir.),cert. denied, 534 U.S. 1008 (2001). There, the court stated:
It is well established that a § 2255 petition cannot be used to `relitigate questions which were raised and considered on direct appeal." Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997), cert. denied, 525 U.S. 953 (1998); Riascos-Prado v. United States, 66 F.3d 30, 33 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46 (2d Cir. 1993). If Sanin thus raises an issue that was dealt with on direct appeal, he will be procedurally barred from proceeding with the challenge. "Reconsideration is permitted only where there has been an intervening change in the law and the new law would have exonerated a defendant had it been in force before the conviction was affirmed on direct appeal." Chin v. United States, 622 F.2d 1090, 1992 (2d Cir. 1980), cert. denied, 450 U.S. 923 (1981).Sanin, 252 F.3d at 83 (emphasis added).
Further, the dual requirement of "an intervening change in law" and "exoneration" — for which Bennett could not find a single reported case in the federal system — was set out in a 1976 Second Circuit's decision interpreting Davis v. United States, 417 U.S. 333 (1974) (on which Bennett relies extensively) — United States v. Loschiavo, 531 F.2d 659 (2d Cir. 1976). There, the Second Circuit stated that:
The Court analyzed Davis at some length in it original Memorandum Decision and Order. See, 2006 U.S. Dist. LEXIS 12395, at **14-25.
Both Davis and Travers . . . were concerned with changes of law subsequent to the conviction of the respective petitioners which would have exonerated them if in force before the affirmances of their convictions on review.Loschiavo, 531 F.2d at 664 (emphasis added).
Bennett's attempt to distinguish Chin as a petition for error coram nobis as opposed to a § 2255 petition is similarly unconvincing and facile, as the Second Circuit has expressly noted that "Section 2255 and coram nobis are similar." Id. at 662 (citations omitted).
Notwithstanding the authority cited above, Bennett exhorts that the "Davis never required exoneration," (Petr.'s Mem. at 3,) and that a term Davis did use — "miscarriage of justice" — has broader application than exoneration (id. at 3-4). For support, Bennett cites Graziano v. United States, 83 F.3d 587 (2d Cir. 1996), and Johnson v. United States, 313 F.3d 815 (2d Cir. 2002), stating that "the Order does not address Petitioner'sGraziano grounds for the Petition to prevent `miscarriage of justice' generally" (Petr.'s Mem. at 3). However, these cases — nor the cases they cite with regard to the term "miscarriage of justice" — explicitly held that the term applies to circumstances that do not involve exoneration.
In Graziano, the Second Circuit stated that it had "previously held that collateral attack on a final judgment in a criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in complete miscarriage of justice." United States v. Graziano, 83 F.3d 587, 589-90 (2d Cir. 1996) (citing United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)) (internal quotation marks omitted). In Graziano, the Second Circuit ruled that an alleged erroneous application of the Sentencing Guidelines, which was raised for the first time in a § 2255 motion, was procedurally barred on the ground that it did not constitute a complete miscarriage of justice. Id. at 590.
In Johnson v. United States, 313 F.3d 815 (2d Cir. 2002), the Second Circuit found that the trial court had erred in relying onGraziano to deem petitioner's § 2255 claim of Sixth Amendment ineffective assistance of counsel procedurally barred. Id. at 817. The court held that application of Graziano was "inappropriate because claims of ineffective assistance of counsel generally are not procedurally barred." Id. (citingBilly-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993)).
The Second Circuit cited United States v. Bokun, 73 F.3d 8 (2d Cir. 1995) in Graziano, 83 F.3d at 590. In Bokun, the court stated that it had "held on several occasions that a collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice."Bokun, 73 F.3d at 12 (citations and internal quotation marks omitted). Bokun involved a trial court's grant of a reduction of a sentence (following a co-defendant's reduction in a sentence) on a § 2255 motion. The Second Circuit reversed and reinstated the sentence finding that Bokun's § 2255 claim was not based on any legal or jurisdictional infirmity and that he had "no constitutional or otherwise fundamental interest in whether a sentence reflects his . . . culpability with respect to his . . . codefendants." Id. Thus, in none of these decisions did the Second Circuit expressly describe "miscarriage of justice" and in two of these decisions the court indicated circumstances that do not constitute "miscarriage of justice."
Notably, Bokun cited Hill v. United States, 368 U.S. 424 (1962) for the proposition that § 2255 relief is available only for "an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Bokun, 73 F.3d at 12 (internal quotation marks omitted). Hill, however, also dealt with a circumstance that the Supreme Court held did not involve a "miscarriage of justice." 368 U.S. at 428. In Hill, the Court stated as follows:
The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.Id. (citations and internal quotation marks omitted). NotJohnson, nor Graziano, nor Bokun (all of which succeededDavis) cited Davis; moreover, their jurisprudential source — if anything — was Hill where the Supreme Court rejected a habeas claim as not involving a complete miscarriage of justice. Thus, while decisions sometimes describe circumstances insufficient to constitute a "miscarriage of justice", this Court did not find any that expressly found a "miscarriage of justice" in the context presented to it by Bennett. Moreover, Bennett has not cited any authority based on Davis where a court lifted the bar to relitigation due to an intervening change of law, which did not involve exoneration.
In conclusion, the Court has relied on Second Circuit authority interpreting Davis, which expressly states that the bar to relitigation requires an intervening change in the law that exonerates a petitioner.
Finally, the Court in its original Memorandum Decision and Order, noted that:
[O]n direct review, the Second Circuit has recognized many instances where Apprendi error withstood plain and harmless error review, lending more support to the contention that Apprendi errors do not "inherently result in a complete miscarriage of justice." Davis, 417 U.S. at 346-47; see also United States v. Friedman, 300 F.3d 111, 128 (2d Cir. 2002) (Apprendi error not reversible error); United States v. Outen, 286 F.3d 622, 639 (2d Cir. 2002) (same); United States v. Pappa, 37 Fed. Appx. 551, 553 (2d Cir. 2002) (same); United States v. Rivera, 282 F.3d 74, 77-78 (2d Cir. 2002) (same).Bennett v. United States, No. 03 Civ. 1852, 2006 U.S. Dist. LEXIS 12395, at *24 (S.D.N.Y. Mar. 21, 2006). Even, if the Court where to apply this Circuit's relitigation jurisprudence as Bennett suggests and consider the Apprendi error as if it were being raised on direct appeal anew — it would conclude (as the Second Circuit did, United States v. Bennett, 252 F.3d 559, 565 (2d Cir. 2001)) — that Apprendi does not warrant setting aside Bennett's conviction given the trial record below and the evidence, which "established beyond any conceivable doubt that Bennett was the prime mover in a fraud that took hundreds of millions of dollars from the victim investors." Id. (citingUnited States v. Bennett, No. 97 Cr. 639, 2000 U.S. Dist. LEXIS 4928, at *1 (S.D.N.Y. Apr. 18, 2000)) (internal quotation marks omitted).
The Court has considered movant's other arguments and finds them to lack merit.
For the foregoing reasons, the motion for reconsideration is denied.
Bennett submitted a request by letter dated June 12, 2006 that the Court issue a certificate of appealibility on the ground that the United States Supreme Court granted certiorari in the case of Burton v. Waddington, ___ U.S. ___, 05-9222 (June 5, 2006). Under § 2253(c)(2), "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This "demonstration . . . includes showing that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citations and internal quotation marks omitted). Further, "[w]here a plain procedureal bar is present [as is the case here] and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to procedure further" and "[i]n such a circumstance, no appeal would be warranted." Id. The Court notes, that under Federal Rule of Appellate Procedure 22(b)(1), "[i]f the district judge has denied the certificate, the applicant may request a circuit judge to issue the certificate." Furthermore, under the Rules of the Second Circuit, "where an appeal has been taken but no certificate of appealability . . . has been issued by the district judge . . ., an appellant shall promptly move in this court for such a certificate." Local Rule 22(a) of the Second Circuit Court of Appeals.
SO ORDERED.