Opinion
98 C 3980.
June 21, 2000.
MEMORANDUM OPINION AND ORDER
Petitioner Robert Salerno moves this court to vacate, set aside, or grant a new sentencing hearing pursuant to 28 U.S.C. § 2255. Sarerno requests that this court grant his § 2255 motion for three reasons: (1) the court should have recused itself or revealed a death threat made upon the court by one of Salerno's co-defendants; (2) the government illegally taped conversations between Salerno's co-defendants and their attorneys; and (3) the government harassed and threatened unidentified defense witnesses. In addition, Salerno requests that the court recuse itself from all future proceedings regarding this case, issue a motion for discovery regarding the alleged death threat made upon the court, and rule upon his Singleton claim. For the reasons set forth below, this court denies Salerno's § 2255 motion, his motion for this court to recuse itself from future proceedings, his motion for discovery, and hisSingleton claim.
Background
Salerno was involved in a multi-count case that included nineteen other defendants. (Mot. at 1.) In connection with that case, Salerno was charged with three RICO predicate acts, conspiracy to murder and murder of Hal Smith (a bookmaker). (Mot. at 2.) The Seventh Circuit aptly described the history of Salerno's case as follows:
This case involve[d] the murder of Hal Smith, allegedly by the defendant, Robert Salerno, and his cohorts Rocco Infelise, Louis Marino, and Robert Bellavia. All four men were members of the Ferriola Street Crew — a unit of Chicago's organized crime establishment, often referred to as the "Outfit." The Chicago Outfit operates through "street crews," and the Ferriola Street Crew (named after Joseph Ferriola, the boss of the crew from 1979 to 1989) engaged in a number of criminal activities including the collection of protection money (or "street tax") from bookmakers, houses of prostitution, and adult theaters. Infelise became the boss of the Ferriola Street Crew upon Ferriola's death in 1989.
On February 10, 1985, Smith's stabbed, strangled, and tortured body was found in the trunk of his own car. Smith ran a lucrative independent bookmaking operation in Lake County, Illinois. Beginning around 1981, Smith was aware that Marino and Salvatore DeLaurentis — another member of the Ferriola Street Crew — were attempting either to collect street taxes from independent bookmakers or to force them to become partners with the Ferriola crew. After initially resisting these efforts, Smith and his two bookmaking partners began paying DeLaurentis $3,000 per month in street tax in 1983.
In late February or early March 1984, DeLaurentis arranged to meet Smith and one of his phone clerks at an Arlington Heights restaurant. At the meeting, DeLaurentis asked Smith to pay $6,000 per month in street tax. Smith offered to pay $3,000 and then $3,500, but DeLaurentis insisted upon the $6,000. At that point, Smith and DeLaurentis had a loud argument over who had more money and power, and they began throwing money at each other. Smith then ordered DeLaurentis to leave before he kicked his "olive oil smelling ass" back to Sicily. DeLaurentis retorted that Smith would be "trunk music."
In the spring of 1984, Infelise asked William Jahoda, an Outfit bookmaker, where Smith lived so that the street crew could collect the tax. Throughout the summer of 1984, Salerno, Infelise, Marino, and Bellavia used Jahoda's Long Grove, Illinois house as a base for their "stalking" operation of Smith in an attempt to learn his whereabouts and identify his car. On or about February 4, 1985, Infelise ordered Jahoda to bring Smith to Jahoda's house. Jahoda arranged to meet Smith at a tavern on February 7 and informed Infelise of the meeting.
On the afternoon of February 7, 1985, Salerno, Infelise, Marina, and Bellavia came to Jahoda's house. Infelise instructed Jahoda to bring Smith back to Jahoda's house in Smith's car. He also wanted Jahoda to remain outside and let Smith enter the house alone through the kitchen. That night, Jahoda met Smith and brought him back to his house. Smith entered the house by himself while Jahoda pretended to go to the mailbox. Jahoda saw Smith through the kitchen door and windows, and he saw Salerno come up behind Smith. Jahoda waited in the garage until Infelise came outside looking for Smith's car. Infelise, however, returned to the kitchen to get Smith's car keys. At that time, Jahoda saw Smith lying on the kitchen floor but still conscious, surrounded by Bellavia, Marino, and Salerno. Marino removed Smith's car keys from Smith's coat pocket and gave them to Infelise. Infelise then drove Jahoda back to the tavern and instructed him to burn his clothes.
Everybody was gone when Jahoda returned home later that evening. Jahoda noticed that part of the kitchen floor had been mopped, and he found a brown bag, a plastic bag for vinyl twine, and a hardware store receipt. He also received a phone call from Infelise who asked Jahoda to look for a cigar and some glasses that Marina thought he had left behind. Jahoda did not find these items; the Arlington Police, however, later recovered both the cigar and glasses from Smith's car. In the years after the murder, Infelise, Bellavia, and Salerno made statements to Jahoda regarding the "stalk" and murder of Smith. Little did they know, however, that Jahoda became an informant for the government in April 1989.
A grand jury returned a multi-count superseding indictment against twenty individuals, including Salerno, charging them with a variety of crimes including RICO conspiracy. Salerno was also named in three RICO predicate acts and two substantive counts. Count 8 charged Salerno of conspiring with Infelise, DeLaurentis, Bellavia, and Marina to murder Smith in order to maintain or increase their positions in a racketeering enterprise. Count 9 charged Salerno, Infelise, Bellavia, and Marina with the actual murder of Smith, again for the purpose of maintaining or enhancing their positions in the enterprise.
The government's case against these defendants proceeded to trial, and on March 10, 1992, the jury delivered its verdict. The jury found Salerno not guilty of RICO conspiracy, but it convicted Infelise, DeLaurentis, Bellavia, and Marina on the RICO conspiracy count, as well as other counts. See generally, United States v. DiDomenico, 78 F.3d 294 (7th Cir 1996). . . . The jury, however, could not reach a verdict on Counts 8 or 9 as to Salerno, Infelise, Bellavia, and Marina. Seventeen months later, the government announced its intention to retry only Salerno on Counts 8 and 9. In the second trial, a jury found Salerno guilty on both counts.United States v. Salerno, 108 F.3d 730, 733-34 (7th Cir. 1997).
On March 10, 1992, a jury found Salerno not guilty of the RICO count and failed to return a verdict on the counts of conspiracy to murder and murder. (Mot. at 2.) On January 23, 1995, the United States Attorney's Office received information that Salerno's co-defendant, Rocky Infelise, allegedly made a death threat against this court. (Mem. at 2.) On February 1, 1995, a United States Attorney, a United States Marshall and others met with this court to inform it of the threat. (Id.) Salerno's retrial began on February 7, 1995. On March 3, 1995, a jury found Salerno guilty of conspiracy to murder and murder. (Mot. at 2.) This court sentenced Salerno to life imprisonment on October 6, 1995. (Resp. at 1.) On March 4, 1997, the Seventh Circuit Court of Appeals denied Salerno's appeal. See Salerno, 108 F.3d at 730. Ultimately, the FBI found the death threat unfounded. (Mot. at 3.) This court did not inform Salerno or his counsel of the threat. (Mot. at 3.)
Salerno based his appeal on four issues: (1) violation of the Speedy Trial Act; (2) error by the district court in allowing evidence of other crimes to show Salerno's membership in an enterprise; (3) violation of the preclusion component of the Double Jeopardy Clause; and (4) error by the district court in admitting a scale model of the crime scene and allowing the jury to examine the model during deliberations. (Mot. at 2.)
Analysis
In this § 2255 motion, Salerno alleges: (1) this court should have recused itself or revealed a death threat made upon the court by one of Salerno's co-defendants; (2) the government illegally taped conversations between Salerno's co-defendants and their attorneys; and (3) the government harassed and threatened unidentified defense witnesses. Salerno further requests that this court recuse itself from future proceedings. In addition, Salerno moves for discovery pertaining to the alleged death threat in 1995 and his Singleton claim.
I. Recusal
Salerno sets forth two separate arguments for recusal. First, this court should have recused itself in 1995 when it learned of the alleged death threat against it by one of Salerno's co-defendants; and second, the court should recuse itself from all future proceedings related to this case. These recusal arguments implicate 28 U.S.C. § 455 (a), 455(b)(1), 455(b)(5)(iv), as well as both the Fifth and Sixth Amendments to the United States Constitution.
This court has already addressed recusal for two of Salerno's co-defendants under 28 U.S.C. § 455 (a). See Marina v. United States, No. 97 C 7159, 1999 WL 39008, *3, *5-*7 (N.D. Ill. Jan 15, 1999). Salerno contends that this court should have recused itself under 28 U.S.C. § 455 (a) when it learned of the death threat allegedly made by co-defendant Infelise. According to 28 U.S.C. § 455 (a) "[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Actual bias is not necessary; the appearance of bias is adequate to trigger recusal under § 455. See Liteky v. United States, 510 U.S. 540, 548 (1994). The standard is "whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case." Pepsico, Inc. v. McMillen, 764 F.2d 458, 260 (7th Cir. 1985).
A Judge's actions can provide the basis for recusal. For example, "recusal was required because `[t]he judge obviously took the [death] threat very seriously, and chose to accelerate court procedures in order to reduce the risk to him and his family as he perceived it.'" Marino, 1999 WL 39008, at *7 (citing United States v. Greenspan, 26 F.3d 1001, 1007 (10th Cir. 1994)). In addition, the Greenspan district court judge denied the defendant's motion for a continuance. Greenspan, 26 F.3d at 1006. Accordingly, the Tenth Circuit Court of Appeals found that the district court judge's actions demonstrated a belief in the genuineness of the death threats so that an objective observer could conclude that the judge may not have been impartial. Id. at 1007.
This court has already addressed the same argument from co-defendants Marino and Infelise and rejected it. See Marino, 1999 WL 39008, at *3, *5-7. Similar to co-defendant Marino, Salerno was never alleged to have directly made any threat against this court. Therefore, Salerno's motion for recusal is analogous to co-defendant Marino's motion, which this court found "even weaker than Infelise's motion because Marino was never reported to be a source of the threats, or directly connected to the threats in any way." Id. at *3. Salerno points out, however, that his motion for recusal differs from Marino's motion because "the court became aware of the threat before Salerno's retrial and sentencing." Nevertheless, this court's reasoning in Marino remains applicable. Salerno has not demonstrated a sufficient connection between the alleged threat by Infelise and Salerno's trial and sentencing.
Salerno further agues that "because the trial judge failed to disclose the threat to Salerno before trial or sentencing, the judge was derelict in her duty to provide notice under § 455." Salerno, however, misinterprets the requirements of § 455. The statute does "place on the judge a personal duty to disclose on the record any circumstances that may give rise to a reasonable question about his impartiality."United States v. Murphy, 768 F.2d 1518, 1537 (7th Cir. 1985). The judge, however, must first believe that a reasonable question exists regarding her impartiality before making a disclosure on the record. See id.
In addition, the Murphy court noted that "any appearance of impropriety under § 455(a) [was] not actual impropriety, so that recusal does not retroactively invalidate judicial acts that preceded the motion Murphy filed." Id. at 1541; accord United States v. Balistrieri, 779 F.2d 1191, 1204-05 (7th Cir. 1985). Therefore, even if Salerno's allegations of the appearance of impropriety existed (in contrast to actual impropriety), the court's decisions prior to Salerno's motion for recusal stand. As previously discussed, however, there was no reasonable question regarding this court's impartiality; consequently, this court had no duty to provide notice.
Salerno attempts to equate this court's pretrial ruling, allowing the admission of evidence of other crimes and imposing the highest maximum sentence, with an alleged bias toward Salerno. The first prong of this theory is that the court exhibited bias toward Salerno because of its pretrial ruling regarding the admission of evidence. First, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source." Liteky, 510 U.S. at 555. Second, "opinions formed by the judge on the basis of facts introduced or events occurring during the course of the current proceedings, or of prior proceedings, do not constitute a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.
In fact, Salerno fails to provide any other indicia of bias other than the blanket assertion of an unfavorable pretrial ruling and imposition of the maximum sentence upon Salerno. Moreover, Salerno raised the issue of the admission of "testimony, some of which was not offered by the government at the first trial" on appeal. See Salerno, 108 F.3d at 738. The appeal focused on whether the district court [Judge Williams] had "improperly allowed the government to present evidence of other crimes allegedly committed by [Salerno]." See id. The Court of Appeal's review indicated no abuse of discretion by the district court in admitting the evidence. Id. at 738-40. Therefore, because there was no improper ruling admitting the evidence on the part of the court, there is no basis for Salerno's assertion that the evidentiary ruling can now serve as a basis for recusal.
Next, Salerno contends that this court's alleged bias manifested itself by the imposition of Salerno's life imprisonment sentence. "In numeric terms, Salerno received a sentence higher than each of his co-defendants albeit unlike the co-defendants, Salerno was sentenced under pre-guideline law." Salerno already raised objections to his sentencing that were overruled. See United States v. Salerno, No. 90 CR 87-5, 1995 WL 622415, *1 (N.D. Ill. Oct 20, 1995) (arguing, in part, that the court could not impose a life sentence for conspiracy to murder under 18 U.S.C. § 1952B (now renamed 1959(a)(1)), or impose a life sentence without a jury recommendation). Co-defendants Bellavia, Infelise, and Marino objected to their sentencings on appeal. See DiDomenico, 78 F.3d at 304. Salerno, however, failed to raise any objection on direct appeal. See generally, Salerno, 108 F.3d at 730.
In a § 2255 motion, a defendant cannot raise "nonconstitutional issues that could have but were not raised on direct appeal and constitutional issues that were not raised on direct appeal, unless the § 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal." Marino, 1999 WL 39008, at *1 (citing Belford v. United States, 975 F.2d 310, 313 (7th Cir. 1992), overruled on other grounds by Castellanos v. United States, 26 F.3d 717, 719-20 (7th Cir. 1994); Norris v. United States, 687 F.2d 899, 900 (7th Cir. 1982); United States v. Herrera, 918 F. Supp. 243, 246 (N.D. Ill. 1996), aff'd, 108 F.3d 1379 (1997)).
Although Salerno does not raise his sentence as a ground for § 2255 relief, he attempts to utilize the argument as a backdoor attempt to prove his recusal allegations. The court rejects this acrobatic attempt to avoid this procedural bar because Salerno provides no cause for the failing to raise the sentencing issue on appeal nor any actual prejudice for failing to appeal this particular issue. Furthermore, the court was within its discretion in imposing Salerno's sentence. See Salerno, 1995 WL 622415, at * 1.
B. Recusal from Future Proceedings
Salerno also asserts that this court should recuse itself from future proceedings. He alleges that the court remains impartial because of the alleged death threat made in 1995. Salerno maintains that recusal is warranted under 28 U.S.C. § 455 (a) to maintain the appearance of impartiality.
Salerno provides no evidence for the alleged impartiality with regard to future proceedings. In fact, the FBI investigation revealed that the alleged death threat against the court was unsubstantiated. Because there is no evidence that there was ever any death threat made against this court by co-defendant Infelise, there is simply no reason that a reasonable person would perceive a significant risk that this court would resolve this case for any other reason than on it merits.
Salerno also asserts that this court should have recused itself, in 1995, under the requirements of 28 U.S.C. § 455 (b)(1), when it learned of the alleged death threat. In addition, Salerno argues that the court must recuse itself from future proceedings under 28 U.S.C. § 455 (b)(1) because the court is personally "biased and prejudiced" against Salerno as a result of the death threat and as a matter of due process.
Disqualification is required according to 28 U.S.C. § 455 (b)(1) "[w]here [the judge] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455 (b)(1). The thrust of both recusal arguments focuses on the language of "personal bias or prejudice concerning a party." Id. The Seventh Circuit has noted that "[t]he disqualification of a judge for actual bias or prejudice is a serious matter, and it should be required only when the bias or prejudice is proved by compelling evidence. Accordingly . . . the appropriate standard of proof is . . . whether a reasonable person would be convinced that the judge is biased." Balistrieri, 779 F.2d at 1202. "The judge is free to make credibility determinations, assign to the evidence what he believes to be its proper weight, and to contradict the evidence with facts drawn from his own personal knowledge." Id.
Thus, this court assessed an alleged death threat coming from Salerno's co-defendant and, under the standard of 28 U.S.C. § 455 (b)(1), found no reason to harbor person bias or prejudice toward Salerno. In fact, the court has reiterated that it did not take the threat seriously. This court recognizes, however, that the standard, under § 455(b)(1), is not subjective. But, as previously discussed, a reasonable objective observer would not have a sound basis to believe that a threat coming from Salerno's co-defendant, a threat that had not even been substantiated, would lead to any bias or impartiality. Thus, the court rejects this argument for recusal.
Salerno also states that 28 U.S.C. § 455 (b)(5)(iv) requires recusal from future proceedings because the court is a likely material witness to the allegations contained in his § 2255 petition. Section 455(b)(5)(iv) requires recusal when the judge is "likely to be a material witness in the proceeding." 28 U.S.C. § 455 (b)(5)(iv). According to 28 U.S.C. § 455 (a) "[a]ny judge . . . shall disqualify himself" when certain circumstances arise. 28 U.S.C. § 455 (a); Balistrieri, 779 F.2d at 1205 (describing the procedure when a judge refuses to recuse himself under § 455(a)). Similarly, the judge "shall also disqualify himself" according to the other sections of the statute that Salerno asserts. 28 U.S.C. § 455 (b)(1) (b)(5)(iv); Balistrieri, 779 F.2d at 1202 (noting that "[s]ection 455(b)(1) is directed to the judge and is self-executing"); United States v. Pollard, 959 F.2d 1011, 1031 (D.C. Cir. 1992) (noting that judge was required to recuse himself pursuant to requirements of § 455(b)(5)(iv)).
The only apparent allegations within Salerno's motions for which the court might be a material witness relate to Salerno's recusal arguments. Under the recusal provisions that Salerno argues, the court makes the determination of whether recusal is necessary. Therefore, the court need not be a material witness to the proceedings. Consequently, the court also rejects this basis of recusal.
E. Fifth and Sixth Amendments
Salerno argues, in part, that he was deprived of his Fifth Amendment right to due process because the court was "personally biased and prejudiced" against him. Contrary to the government's assertion, actual bias need not be shown. Rather, "judges must sometimes recuse themselves when they face possible temptations to be biased, even when they exhibit no actual bias against a party or a cause." Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363, 1372 (7th Cir. 1994) (en banc). The Seventh Circuit, however, noted that Supreme Court jurisprudence regarding disqualification required "`direct, personal [and] substantial' influences on the judges involved." Id. at 1373 (quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) see also United States v. El-Jassem, 819 F. Supp. 166, 180 (E.D.N.Y. 1993) (discounting threats made against the judge that did not come from the current defendant),aff'd, 48 F.3d 1213 (2d Cir. 1994). The only alleged influence upon this court came from the alleged death threat made by Salerno's co-defendant Infelise. Salerno never had any direct, personal, or substantial influence upon this court. Therefore, there was no violation of Salerno's right of due process with respect to an impartial judge.
Salerno also asserts that he was denied his right to a fair and impartial trial as guaranteed by the Fifth and Sixth Amendments. The Fifth Amendment to the United States Constitution provides, in relevant part, that "[n]o person shall . . . be deprived of life, liberty or property, without due process of law." The Sixth Amendment requires that "in all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor." Salerno asserts that "[t]he denial of procedural due process warrants the granting of collateral relief." Yohn v. Love, 76 F.3d 508, 517 (3d Cir. 1996). In Yohn, the court found that the defendant was denied his due process notice requirement because "adequate notice requires disclosure of all the issues to be discussed and a sufficient time to prepare." Id. The facts of Yohn, however, regard an evidentiary decision, whereas the facts of Salerno's case relate to a recusal decision. In Yohn, the defendant's attorney did not participate in a telephone call regarding the admissibility of wiretap evidence between the trial judge and Chief Justice while the prosecuting attorney did participate. Id. The ex-parte proceeding in Yohn differs from the proceeding that Salerno argues as a basis for denial of his Fifth and Sixth Amendment rights. The proceeding in Judge Williams's chambers arose because of the alleged death threat made by co-defendant Infelise. There is no nexus to Salerno's case, and as previously discussed, the court neither harbored any bias nor displayed any impartiality towards Salerno to deprive him of either his Fifth or Sixth Amendment rights.
II. Illegally Taped Conversations
Salerno first raises the issue of illegally taped conversations in his § 2255 motion. In fact, Salerno incorporates his co-defendants' § 2255 pleadings into his own § 2255 petition. In a § 2255 motion, a defendant cannot raise "nonconstitutional issues that could have but were not raised on direct appeal and constitutional issues that were not raised on direct appeal, unless the § 2255 petitioner demonstrates cause for the procedural default as well as actual prejudice from the failure to appeal." Marino, 1999 WL 39008, at *1 (citing Bedford, 975 F.2d at 313, overruled on other grounds by Castellanos, 26 F.3d at 719-20; Norris, 687 F.2d at 900; Herrera, 918 F. Supp. at 246).
Salerno provides neither a cause for this procedural default nor an explanation of actual prejudice from the failure to appeal. In addition, this court rejected these arguments when proffered by Salerno's co-defendants. See Marino, 1999 WL 39008. at *1-2 (finding that Marino failed the "cause" requirement by explicably failing to raise the issue on appeal, even with ample opportunity to do so and that Marino failed the "prejudice" prong by fialing to show that any prejudice resulted from the alleged bugging, and concluding that Marino is, therefore, barred from raising the issue in his § 2255 motion). Therefore, even if Salerno were not procedurally barred from raising this issue in his § 2255 petition, this court would reject his arguments for the same reasons the arguments were rejected for Salerno's co-defendants.
III. Harassment of Unidentified Defense Witness
Salerno also raises, for the first time, the issue of government harassment of an unidentified defense witness in his § 2255 motion. Salerno argues that "[a]s a result of the harassment . . . without the ability to call witnesses in his own defense, [Salerno] was denied his right to a fair trial and his right to present a defense, as guaranteed by the 5th and 6th Amendments of the United States Constitution." Salerno fails to provide a basis for cause for his procedural default, much less actual prejudice from the failure to appeal this issue. In fact, Salerno's reply brief never mentions this argument or attempts to respond to the government's objections.
IV. Fifth and Sixth Amendments
Salerno argues that, because he was unable to procure witnesses he was deprived of both his Fifth and Sixth Amendment rights. While these rights are bedrock principles to our jurisprudence, speculation and failure to follow procedural standards preclude relief under either Fifth or Sixth Amendments. In short, because Salerno did not raise this issue on appeal and failed to provide the court with cause stating why it was omitted from his first appeal, the court rejects these arguments as a basis for § 2255 relief.
V. Motion for Discovery
Salerno requests a motion for added discovery of the alleged death threat made against this court in 1995. Discovery in § 2255 proceedings shall be granted in the judge's "discretion and for good cause . . . but not otherwise." 28 U.S.C.A. § 2255 Rule 6(a). In addition, the "[r]equest for discovery shall be accompanied by a statement of the interrogatories or requests for admission and a list of the documents, if any, sought to be produced." Id. § 2255 Rule 6(b).
Specifically, Salerno requests the following:
a. Production of all written correspondence received by Judge Williams and/or the government regarding the threat.
b. Production of a transcript of the February 1, 1995 meeting between Judge Williams, AUSA Vogel, Marshal Deliberate indifference Leonardi and others. . . .
c. Production of any and all notes taken regarding or during the February 1, 1995 meeting.
d. Identification of all participants in the February 1, 1995 meeting.
e. Leave to dispose all participants in the February 1, 1995 meeting.
f. Production of all FBI 302's and any other investigative memoranda regarding the threat Investigation. (Peter Discovery Mot. at 3-4.)
Good cause may be satisfied "`[w]here specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the courts to provide the necessary facilities and procedures for an adequate inquiry.'" Bracy v. Gramley, 520 U.S. 899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Habeas petitioners, however, lack the same "broad discovery provisions" available under the Federal Rules of Civil Procedure. Id. at 904. InBracy, the petitioner made a showing of specific allegations before the discovery was granted. See Bracy, 520 U.S. at 909 (noting that the petitioner "made a sufficient showing, as required by Habeas Corpus Rule 6(a), to establish `good cause' for discovery").
In contrast, Salerno speculates, but fails to provide specific allegations that this court was biased and impartial because of the alleged death threat by one of Salerno's co-defendants. The discovery afforded to Habeas Corpus petitioners, moreover, remains limited. See Harris, 394 U.S. 286, at 299. Therefore, this court denies Salerno's motion for discovery.
V. Singleton Claim
Salerno notes that there were several governmental witnesses, particularly William Jahoda, who testified in exchange for benefits from the United States Government. Salerno presumably seeks either a reversal of his conviction or a suppression of these witnesses' testimony and therefore a retrial based upon the Singleton decision. See United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998). The Tenth Circuit Court of Appeals, however, vacated its own decision in Singleton. See United States v. Singleton, 165 F.3d 1297 (10th Cir.), cert. denied, 527 U.S. 1024 (1999). Nevertheless, Salerno asks this court to consider the rationale of Singleton that was adopted by other district courts.
The Seventh Circuit Court of Appeals, however, made clear that under 18 U.S.C. § 201 (c)(2) the "government may promise immunity, benefits and security in exchange for truthful testimony." United States v. Blassingame, 197 F.3d 271, 285 (7th Cir. 1999), cert. denied, Fuller v. United States, 120 S.Ct. 2024 (2000). Other circuits agree that the government may, according to 18 U.S.C. § 201 (c)(2), grant leniency in exchange for truthful testimony. See United States v. Hunte, 193 F.3d 173, 174 (3d Cir. 1999), cert. denied, 120 S.Ct. 962 (2000);United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir.), cert. denied, 120 S.Ct. 143 (2000); United States v. Lara, 181 F.3d 183, 197-98 (1st Cir.), cert. denied, 120 S.Ct. 432 (1999); United States v. Ramsey, 165 F.3d 980, 987 (D.C. Cir.), cert denied, 120 S.Ct. 223 (1999); United States v. Rodriguez, 182 F.3d 902, (2d Cir. 1999) (table); United States v. Briones, 165 F.3d 918 (9th Cir. 1998) (table), cert. denied, 119 S.Ct. 1369 (1999); United States v. Carroll, 166 F.3d 334 (4th Cir. 1998) (table), cert. denied, 525 U.S. 1168 (1999); United States v. Haese, 162 F.3d 359 (5th Cir. 1998), cert. denied, 526 U.S. 1138 (1999); United States v. Ware, 161 F.3d 414, 421 (6th Cir. 1998), cert. denied, 526 U.S. 1045 (1999). Consequently, this court rejects Salerno'sSingleton claim.
Conclusion
For the reasons stated above, the court denies Salerno's § 2255 petition, his motion for this court to recuse itself from future proceedings regarding this case [6-1], his motion for discovery [8-1], and his Singleton claim. The court also grants the government's motion to file a response in excess of 15 pages [11-1].