Opinion
94 Civ. 3825(P)(L) 88 Cr. 919 (7S) (P)(L).
May 26, 2000.
Salvatore D'Amico, pro se, Reg. No. 15762-054, FCI Allenwood, White Deer, PA, for Petitioner.
Mary Jo White, Esq., United States Attorney, Southern District of New York, New York, NY, for Respondent.
Michael S. Schachter of counsel, Attorney for Respondent
OPINION AND ORDER
Petitioner Salvatore D'Amico is a federal prisoner who was convicted before this Court in July 1990 on narcotics charges. D'Amico now moves to renew his earlier 28 U.S.C. § 2255 petition for a writ of habeas corpus, citing Fed.R.Civ.P. 60 (b), 28 U.S.C. § 1651, and two Supreme Court decisions rendered in 1998. Petitioner also moves for a reduction of his sentence pursuant to 18 U.S.C. § 3582, and to recuse the Court pursuant to 28 U.S.C. § 144 455(a).
BACKGROUND
On January 3, 1990, petitioner Salvatore D'Amico was among sixteen defendants indicted on seven counts of narcotics conspiracy, violations of federal narcotics and racketeering laws, and intimidation of witnesses. At trial, the jury convicted D'Amico on three counts: conspiracy to import narcotics, conspiracy to distribute or possess with intent to distribute narcotics, and distribution or possession with intent to distribute heroin. See Judgment at 1. The Court ruled that D'Amico bore derivative liability under Sections 1B1.3 1.3 and 2D1.4 of the United States Sentencing Guidelines for heroin possessed and distributed by his co-conspirators. Petitioner was sentenced by the Court pursuant to the Sentencing Guidelines, as amended effective January 15, 1988. Citing the quantity and purity of the drugs at issue, the Court sentenced D'Amico to 235 months' imprisonment, the maximum sentence allowed by the Guidelines, and a $100,000 fine. See Judgment at 2, 4.
The charges against D'Amico arose in connection with narcotics trafficking by the Gambino crime family. See generally United States v. Gambino, 951 F.2d 498 (2nd Cir. 1991).
Although D'Amico was sentenced under the January 15, 1988, revision of the Sentencing Guidelines, he now relies upon the Guidelines made effective November 1, 1989. Though the latter were in place at the time of D'Amico's sentencing, the Government asked the Court to apply the former at sentencing to avoid a potential ex post facto clause problem. See Miller v. Florida, 482 U.S. 423 (1987); see also D'Amico v. United States, 1995 WL 234651 at *1 n. 2 (S.D.N.Y. Apr. 20, 1995). Accordingly, petitioner's reliance on the 1989 guidelines is misplaced.
D'Amico subsequently appealed his conviction claiming, inter alia, that the Court erred in finding that he was accountable for the distribution of over ten kilograms of heroin. The United States Court of Appeals for the Second Circuit affirmed the Court's decision, finding that D'Amico's claims on appeal were without merit. See Gambino, 951 F.2d at 503.
In May 1994, D'Amico petitioned the Court for relief pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel both at sentencing and on appeal. Specifically, D'Amico claimed that his lawyer failed to argue that his derivative liability for the conduct of his co-conspirators should be limited in accordance with U.S.S.G. § 1B1.3 and its corresponding Application Note 1. By Memorandum Order dated April 20, 1995, the Court rejected these arguments and denied D'Amico's § 2255 petition. See D'Amico, 1995 WL 234651. The Court found that D'Amico's counsel had indeed addressed petitioner's claims at length during his sentencing hearing and on direct appeal. Accordingly, the Court found that D'Amico failed to establish his ineffective assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984), and denied the petition for habeas relief. See id.
Section 1B1.3 (a)(1) explains how the base offense level is to be determined where the Guidelines specify more than one base offense level. Application Note 1 states the conduct for which a defendant, acting in concert with others, shall be accountable.
The Court found that D'Amico did not "establish that his trial counsel's performance fell below an objective standard of reasonableness under prevailing professional norms." D'Amico, 1995 WL 234651 at *1 (citing Eko v. United States, 8 F.3d 111, 117 (2nd Cir. 1993)).
D'Amico subsequently appealed the Court's denial of his § 2255 petition to the Second Circuit. On appeal, D'Amico claimed that the Court erred in its calculations at sentencing by including amounts of heroin possessed or distributed by his co-conspirators but not by him, as well as amounts he negotiated but never delivered, and through erroneous findings as to the amount of heroin he possessed. D'Amico had previously raised these same arguments in his sentencing memorandum and on direct appeal. The Second Circuit affirmed the Court's finding that "a criminal defendant may not relitigate questions which were raised and considered on direct appeal in a § 2255 petition." D'Amico v. United States, 100 F.3d 944, 944 (2nd Cir. 1996) (citingRiascos-Prado v. United States, 66 F.3d 30, 33 (2nd Cir. 1995)). The Second Circuit further found that even if D'Amico' s present claims were sufficiently distinct from his previous claims, petitioner "would be barred from raising these issues absent a showing of cause and prejudice." D'Amico 100 F.3d at 944; see also Douglas v. United States, 13 F.3d 43, 46 (2nd Cir. 1993) (finding that failure to raise particular ground on direct appeal bars consideration of that claim in § 2255 motion unless movant can show cause for failing to raise issue, and prejudice resulting therefrom). The Second Circuit found that D'Amico established neither cause nor prejudice for his failure to make these arguments earlier. See D'Amico, 100 F.3d at 944.
DISCUSSION
The factual background of this case has been elaborated in earlier opinions of this Court and the Second Circuit. See D'Amico, 100 F.3d at 944; Gambino 951 F.2d at 498; D'Amico, 1995 WL 234651. Therefore, only those facts material to the instant motion are recited herein.
Petitioner filed this self-styled "Motion to Reopen Previous § 2255 Pursuant to Intervening Law and Rule 60(b) and Motion to Reduce Sentence Pursuant to Title 18 U.S.C. § 3582 (c)(2)" on February 23, 1999, and the motion was fully submitted to the Court on August 23, 1999. In his motion, petitioner raises three underlying issues. The first two, petitioner's challenge to his sentence and his claims of ineffective assistance of counsel, have been fully litigated in this Court and in the Second Circuit. The third, petitioner's contention that the Court impermissibly allowed the United States Probation Office to establish the installment payment schedule on which petitioner must pay his fine see Pet. Mot. at 28, is an entirely new issue. Although the Court may consider the merits of petitioner's motion for a reduced sentence, brought under 18 U.S.C. § 3582, the remaining two claims are requests for relief under 28 U.S.C. § 2255. Because this is petitioner's second request for relief under § 2255, these claims are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1220 (effective Apr. 24, 1996), which amended § 2255 as described below.
I. MOTION TO REOPEN
Under § 2255, as amended by AEDPA, "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals." 28 U.S.C. § 2255. Petitioner attempts to circumvent this requirement by framing the instant petition as a motion to reopen his original § 2255 petition, rather than a second or successive petition. "In order to rein in successive habeas petitions, [AEDPA] amended § 2255 . . . [to] require federal prisoners seeking to file a second or successive § 2255 petition in the district court to move first in the Court of Appeals for an order that authorizes the district court to consider the petition." Corrao v. United States, 152 F.3d 188, 190 (2nd Cir. 1998) (citing Liriano v. United States, 95 F.3d 119, 123 (2nd Cir. 1996) (per curiam)); see also 28 U.S.C. § 2244 (b)(3).
Petitioner's argument that he may renew his earlier § 2255 petition before this Court is an impermissible attempt to avoid the Court of Appeals' gatekeeping function as defined by Congress. Petitioner contends that Rule 60(b), 28 U.S.C. § 1651, and two 1998 Supreme Court cases provide him with the means to bypass the gatekeeping mechanism. Although the Second Circuit has considered this issue generally, see Corrao, 152 F.3d at 191, it has not had occasion to consider this question in the specific contexts of Rule 60(b) and 28 U.S.C. § 1651. The Court is thus guided in its analysis by the Second Circuit's general holding in Corrao, and the holdings of other circuits on these narrower sub-issues.
Several circuits have observed that the principles discussed by the Second Circuit in Corrao apply in the context of a petitioner's resort to Fed.R.Civ. p. 60(b) to bypass the gatekeeping provision of AEDPA. The Seventh Circuit, for example, has specifically held that Rule 60(b) "cannot be used to circumvent restraints on successive petitions for habeas corpus." Banks v. United States, 167 F.3d 1082, 1083 (7th Cir. 1999); see also Thomson v. Calderon 151 F.3d 918, 921 (9th Cir. 1998), cert. denied, 524 U.S. 965 (1998) (finding that a petitioner's "Rule 60 (b) motion should be treated as a successive habeas petition.") The Fifth Circuit has likewise held that "courts may treat motions that federal prisoners purportedly bring under Rule 60 (b), but which essentially seek to set aside their convictions on constitutional grounds, as § 2255 motions." United States v. Rich. 141 F.3d 550, 551 (5th Cir. 1998), cert. denied, 526 U.S. 1011 (1999). As the Seventh Circuit observed in Banks, "[p]etitioners cannot avoid meeting the requirements of 28 U.S.C. § 2244 (b) and § 2255 simply by restyling their requests." Banks, 167 F.3d at 1083; see also Rich, (2000)141 F.3d at 551 ("There is a trend among circuit courts to look beyond the formal title affixed to a motion if the motion is the functional equivalent of a motion under § 2255.")
Petitioner's reliance on the All Writs Act, 28 U.S.C. § 1651, is likewise unavailing. The Supreme Court has made clear that "[t]he All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 428-29 (1996) (quoting Pennsylvania Bureau of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985)). Although the Second Circuit has not discussed this standard in the context ofhabeas petitions, other courts have unequivocally held that a petitioner "cannot evade the restrictions of § 2255 by resort to. . . the All Writs Act." United States v. Barrett, 178 F.3d 34, 38 (1st Cir. 1999); see also Collins v. United States, 2000 WL 516892 at *5 (E.D.N.Y. Mar. 8, 2000) (dismissing petitioner's "effort to avoid the time limitations of the AEDPA [by seeking vacatur] under the All Writs Act."). The Court agrees. Because the relief sought by petitioner is governed by statute — namely, 28 U.S.C. § 2255 — petitioner's reliance on the ancient writs codified in All Writs Act is misplaced. See Carlisle, 517 U.S. at 428-29; United States v. Tablie 166 F.3d 505, 506-507 (2nd Cir. 1999) (All Writs Act only "supplement[s] the express powers of a court in cases in which jurisdiction already exists.")
The Second Circuit has declined under other circumstances to rule on this question, e.g., where the petition for a writ ofcoram nobis was filed before the effective date of AEDPA, see United States v. Mandanici, 205 F.3d 519, 524 n. 9 (2nd Cir. 2000), and where the merits of the petition were sufficiently clear to warrant denial without first reaching this issue. See United States v. Novak, 181 F.3d 83 (table), 1999 WL 357846 at *2 n. 2 (2nd Cir. May 26, 1999); Triestman v. United States, 124 F.3d 361, 380 n. 24 (2nd Cir. 1997).
Finally, petitioner's reliance on two 1998 Supreme Court decisions, Stewart v. Martinez-Villareal, 523 U.S. 637 (1998), andBousley v. United States, 523 U.S. 614 (1998), is misplaced. InStewart, the Court held that, notwithstanding the requirements imposed by AEDPA, a prisoner is entitled to one adjudication of the merits of a habeas petition. The petitioner in Stewart had filed four habeas petitions before the effective date of AEDPA, and the district court had dismissed all but one of his claims with prejudice after adjudication on the merits. The Court held that petitioner was entitled to adjudication of his one remaining claim, which was dismissed without prejudice as premature before AEDPA, and renewed after AEDPA became effective. As the Second Circuit held in Mancuso v. Herbert, 166 F.3d 97, 101 (2nd Cir. 1999), Stewart stands for the proposition that prisoners are entitled to full adjudication of claims that have not yet been decided on their merits. See also Slack v. McDaniel, 120 S.Ct. 1595, 1604-1605 (2000) (petition unadjudicated on its merits. . . is not a second or successive petition.") Unlike the petitioner in Stewart, however, all claims raised by D'Amico in his initial § 2255 petition have been decided on the merits. See D'Amico, 100 F.3d 944; D'Amico 1995 WL 234651 at *2. Thus, petitioner's reliance on Stewart is unavailing. Bousley, the companion case toStewart, is likewise of no assistance to petitioner. In Bousley, the Court held that, notwithstanding an intervening Supreme Court ruling that recharacterized the elements of the underlying weapons offense see Bailey v. United States, 516 U.S. 137 (1995), petitioner could not raise the issue on collateral review where he had failed to raise it on direct appeal. See Bousley v. United States, 523 U.S. 614 (1998); see also Rosario v. United States, 164 F.3d 729, 733 (2nd Cir. 1998); DeJesus v. United States, 161 F.3d 99, 102 (2nd Cir. 1998). Bousley and progeny essentially restate the cause-andprejudice standard for overcoming procedural default in the habeas context, which provides petitioner no basis for bypassing AEDPA's rules on successive petitions. Because neither Stewart nor Bousley is of any help to petitioner, he may not circumvent the AEDPA gatekeeping provision by resort to such authority.
Accordingly, petitioner's motion must be viewed as a second or successive § 2255 petition. See Corrao, 152 F.3d at 191 ("generally, a § 2255 petition is second or successive if a prior § 2255 petition, raising claims regarding the same conviction or sentence, has been decided on the merits.") The Court thus lacks jurisdiction to review the merits of petitioner's two claims fo relief under § 2255. See 28 U.S.C. § 2244 (b)(3)(A) ("[B]efore a second or successive application. . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application"). The Court may only consider D'Amico's petition once a three-judge panel of the Second Circuit has reviewed it and determined that it presents either: i) "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factflnder would have found movant guilty"; or ii) "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255; see also. e.g., Esposito v. United States, 135 F.3d 111 (2nd Cir. 1997); Triestman v. United States, 124 F.3d 361 (2nd Cir. 1997). While petitioner's inability to satisf either of these requirements is apparent to the Court on the present record, the statute mandates transfer of this case to the Second Circuit. "[R]eaching the merits of an uncertified second or successive § 2255 petition impermissibly circumvents the AEDPA's gatekeeping provisions," Corrao 152 F.3d at 191. Because the instant petition is clearly governed by these gatekeeping provisions, it must be transferred to the Second Circuit for review as outlined in 28 U.S.C. § 2244.
II. MOTION TO REDUCE SENTENCE
Petitioner also moves the Court for a reduction of his sentence pursuant to 18 U.S.C. § 3582 (c)(2), citing revisions to the Sentencing Guidelines made since his conviction. Although courts have occasionally chosen to recharacterize motions made under this section as § 2255 claims, the Court considers petitioner's § 3582 motion as a distinct cause of action, and reviews it on its merits.
See, e.g., Cook v. United States, 142 F.3d 432 (6th Cir. 1998); United States v. Hawkins, 1998 WL 804729 (E.D. Pa. Nov. 19, 1998).
In so doing, the Court is mindful of its obligation to handle the claims of this pro se litigant in the manner most favorable to petitioner. See generally Haines v. Kerner, 404 U.S. 519, 520 (1972); Cruz v. Gomez, 202 F.3d 593, 597 (2nd Cir. 2000);Ruotolo v. Internal Revenue Serv., 28 F.3d 6, 8-9 (2nd Cir. 1994);Hernandez v. Couahlin, 18 F.3d 133, 136 (2nd Cir. 1994). Were the Court to recharacterize this cause of action as a claim for relief under § 2255, it would be required to transfer it to the Second Circuit together with petitioner's other § 2255 claims. Given the high hurdle established by § 2244, the Court declines to recharacterize this claim as a § 2255 claim, which would likely render it a dead letter upon transfer to the Second Circuit. Cf. United States v. Kwok, 1999 WL 386740 at *2.*3 (S.D.N.Y. June 10, 1999) (Haight, J.) (asking Pro se petitioner to reconsider request that court "construe his motion as one made pursuant to § 2255 if the Court finds that § 3582 jurisdiction is inappropriate," in light of successive petition issue). The Court is further persuaded by the Second Circuit's opinion in United States v. Tyrone, 129 F.3d 255, 258-29 (2nd Cir. 1997) (affirming district court's dismissal of § 3582(c)(2) claim on its merits, as distinct from petitioner's § 2255 claims).
Petitioner was sentenced under § 1B1.3 of the January 15, 1988, Sentencing Guidelines. As of November 1, 1989, the Guidelines were amended to add new offense levels to the drug quantity tables. Section 3582(c)(2) of the Guidelines permits, but does not require, modification of a prisoner's sentence if the modification is consistent with the Sentencing Commission's policy statement in U.S.S.G. § 1B1.10 (a), "Retroactivity of Amended Guideline Range." Despite petitioner's suggestion to the contrary, his sentence cannot be reduced on the basis of the 1989 amendments. Petitioner's efforts to reduce his sentence fail for two reasons. First, to be consistent with the Sentencing Commission's policy statement, the amendment relied upon by petitioner must be explicitly listed in § 1B1.10 (c) of the Guidelines. "U.S.S.G. § does not authorize retrospective application of all U.S.S.G. amendments for purposes of collateral review. Instead, it authorizes retrospective application only of specific enumerated amendments, and explicitly precludes retrospective application of all others." LoBuglio v. United States, 1996 WL 103842 at *2 (S.D.N.Y. Mar. 8, 1996) (emphasis added). Petitioner relies upon Amendment 439 to § 1B1.3 and Amendment 447 to § 2D1.1 in support of his motion. However, because neither of these amendments is listed in § 1B1.10 (c) of the Guidelines, the amendments cannot be applied retroactively. "If none of the amendments listed in subsection (c) [of § 1B1.10] is applicable, a reduction in the defendant's term of imprisonment under 28 U.S.C. § 3582 (c)(2) is not consistent with this policy statement and thus is not authorized." U.S. Sentencing Guidelines Manual § 1B1.10 (1998). Because neither amendment relied upon by petitioner is listed in § 1B1.10 (c), petitioner is not entitled to a reduction in his sentence pursuant to 18 U.S.C. § 3582 (c)(2). See United States v. Perez, 129 F.3d 255, 258-59 (2nd Cir. 1997); Berrios v. United States, 126 F.3d 430, 432 (2nd Cir. 1997).
Petitioner argues in the alternative that Amendments 439 and 447 are clarifying amendments, and may therefore be applied retroactively. "An amendment that merely serves to clarify the original provision may be applied retroactively." United States v. Guerrero, 863 F.2d 245, 250 (2nd Cir. 1988). Petitioner's argument fails, however, because clarifying amendments only apply retroactively on a direct appeal, not on collateral appeal. See United States v. Kirkham, 195 F.3d 126, 131 (2nd Cir. 1999) (citing United States v. Hendrickson, 26 F.3d 321, 330 n. 6 (2d Cir. 1994); United States v. Colon, 961 F.2d 41, 45 (2nd Cir. 1992)); LoBuglio, 1996 WL 103842 at *2 (stating that clarifying amendments are not given retroactive effect on collateral review). Given that petitioner's current motion is a collateral appeal, not a direct appeal see Walker v. Artuz, 208 F.3d 357, 359-60 (2nd Cir. 2000) (finding that "`collateral review' and `post-conviction review' conventionally refer to habeas corpus, coram nobis and similar writs or judicial orders that courts issue after a conviction is final"), the amendments do not apply retroactively; accordingly, petitioner's motion to reduce his sentence must fail.
III. MOTION TO RECUSE
Finally, petitioner asks the Court to recuse itself from this action pursuant to 28 U.S.C. § 144 455(a). Petitioner claims that the Court is biased against Italians, see Pet. Mot. to Recuse at 2, and, in turn, cannot impartially adjudicate the motions now before it. Petitioner's motion to recuse is denied for the following reasons.
Petitioner fails to offer proof to support his motion as required by 28 U.S.C. § 144 and 455(a). Under 28 U.S.C. § 455 (a), a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." This determination is to be based upon "whether a reasonable person knowing and understanding all the relevant facts would recuse the judge." Drexel Burnham Lambert Inc. v. DBLI, 861 F.2d 1307, 1313 (2nd Cir. 1988). Under § 144, a judge who is found to have a "personal bias or prejudice against [a party] or in favor of any adverse party" shall not proceed in the case. Section 144 requires the movant to show bias in fact. See Galella v. Onassis, 487 F.2d 986, 997 (2nd Cir. 1973) (finding that "a judge may be disqualified for bias only on motion supported by a written affidavit of facts supporting the claim of bias"). Petitioner's allegations are unsupported, as he fails to demonstrate that the Court's judgments and sentencing decisions lacked impartiality or were subject to bias or prejudice.
Neither the Court's handling of petitioner's original trial and sentence, nor the petitioner's displeasure with the Court's previous rulings provides a basis for recusal. The fact that the Court delivered earlier adverse rulings against petitioner, without more, does not provide a reasonable basis to question a judge's impartiality and move for recusal. See Schiff v. U.S., 919 F.2d 830, 834 (2nd Cir. 1990); United States v. Wolfson, 558 F.2d 59, 64 (2nd Cir. 1977). Petitioner, if merely dissatisfied with an earlier judgment, should seek to appeal it rather than move for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994) (finding that "judicial rulings alone almost never constitute a valid bases for a bias or partiality motion" and "are proper grounds for appeal, not for recusal.") Indeed, petitioner has already availed himself of the appropriate judicial recourse by twice appealing the Court's rulings to the Second Circuit, which both times affirmed. Accordingly, the motion for recusal is denied.
CONCLUSION
For the reasons stated above, petitioner's motions for reduction of his sentence pursuant to 18 U.S.C. § 3582 and for recusal pursuant to 28 U.S.C. § 144 455(a) are hereby DENIED. The Clerk of Court is directed to transfer the instant petition, containing petitioner's successive claims for relief under 28 U.S.C. § 2255, to the United States Court of Appeals for the Second Circuit for certification, pursuant to 28 U.S.C. § 2244.
SO ORDERED.