Opinion
CV 99-191 (RR).
December 21, 2000
STANLEY A. TEITLER, P.C., New York, New York, For Petitioner, Thomas Pitera
HON. LORETTA E. LYNCH, UNITED STATES ATTORNEY, Jodi Levine Avergun, Assistant U.S. Attorney, For Respondent, United States of America
Memorandum and ORDER
Thomas Pitera, who is presently incarcerated, moves for this court to reconsider its earlier dismissal of his motion to vacate his criminal conviction and life sentence made pursuant to 28 U.S.C. § 2255 and alternatively pursuant to 28 U.S.C. § 2241.
On June 25, 1992, after hearing evidence for approximately two months, a jury sitting in this district found Thomas Pitera guilty beyond a reasonable doubt of multiple horrific murders, extensive drug trafficking, and various firearm crimes, all connected to his leadership of a vicious racketeering enterprise, the Pitera Crew of the Bonanno Organized Crime Family. Although the government sought to have the death penalty imposed for certain murders committed by Pitera as the leader of a continuing drug enterprise, see 21 U.S.C. § 848(e)(1)(A); see also United States v. Pitera, 795 F. Supp. 546 (E.D.N Y 1992) (rejecting Pitera's constitutionality challenge to the death penalty), the jury split on the question of a capital sentence. Accordingly, on October 23, 1992, this court sentenced Pitera to seven concurrent life sentences on the racketeering and murder charges, as well as several statutory maximum terms of imprisonment on the narcotics and weapons charges. Pitera appealed his conviction to the Second Circuit, which affirmed in a published opinion, United States v. Pitera, 5 F.3d 624 (2d Cir. 1993), familiarity with which is assumed.
Some five years later, in September 1998, Pitera petitioned this court to vacate his conviction pursuant to 28 U.S.C. § § 2255 and 2241. Pitera complained that the prosecution had violated its obligation to disclose impeachment material to the defense about accomplice witness, Frank Gangi, and various Drug Enforcement Administration agents who worked on his case. He submitted that his attorneys were constitutionally ineffective for failing to obtain this material for use at trial. On November 20, 1998, this court rejected Pitera' s § 2255 petition as time-barred, since it was filed more than one-year after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, § 105, 110 Stat. 1214, 1220 (1996). See Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998); Mickens v. United States, 148 F.3d 145 (2d Cir. 1998) (recognizing a one-year grace period for prisoners whose convictions became final before enactment of the AEDPA to file for relief under 28 U.S.C. § § 2254 or 2255). Mindful, however, that new counsel had recently filed a notice of appearance on Pitera' s behalf, the court indicated that it would entertain a further submission by counsel on or before December 28, 1998 as to why either a § 2255 or a § 2241 claim could lawfully be pursued. Although Pitera filed a pro se submission in mid-December 1998 attempting to address these issues, his attorney filed no papers. Accordingly, in an oral ruling on January 11, 1999, which was memorialized in an order the following day, the court stood by its earlier dismissal finding that petitioner had (1) failed to comply with the court's order that counsel submit an affidavit and legal papers supporting Pitera's motion to vacate see United States v. Stevens, 83 F.3d 60, 67 (2d Cir. 1996) (within district court discretion to deny defendant the right to serve as "co-counsel" with his attorney); United States v. Tutino, 883 F.2d 1125, 1141 (2d Cir. 1989) (same); (2) failed to demonstrate that his § 2255 motion was timely, and (3) failed to demonstrate that his § 2241 claim satisfied the criteria set forth by the Second Circuit in Triestman v. United States, 124 F.3d 361 (2d Cir. 1997).
In early February 1999, Pitera's counsel attempted to resurrect his client's petition, arguing that the § 2255 claim was timely because (1) the Ross/Mickens grace period was tolled between June and August 1996 when Pitera unsuccessfully applied to this court for discovery in anticipation of filing a § 2255 petition, and (2) the government's nondisclosure of the impeachment material stood as an impediment to his timely filing. In an endorsed order dated February 17, 1999, this court declined to vacate its judgment of the previous month, finding counsel's submission itself to be untimely and unsupported by the law and the evidence.
Four months later, in June 1999, Pitera's counsel filed a motion to vacate the earlier dismissal of his client's petition on the grounds that Pitera had recently discovered new evidence showing that the government, by not disclosing relevant impeachment evidence at trial, had suborned perjury. Counsel also moved for further discovery on this claim and for this court's recusal. By order dated July 16, 1999, the court denied the motion to recuse and set a briefing schedule as to all other relief demanded.
Not surprisingly, the government opposed petitioner's motion. In reply, petitioner's counsel filed a series of rambling submissions apparently written by Pitera. The court had expected that when experienced counsel filed a notice of appearance in this case, he would fulfill his duties as an officer of the court to submit papers supported by his own professional inquiry into the law and the facts, and not simply attach cover letters to his client's efforts. Nevertheless, the court has carefully reviewed all papers filed with respect to the motion as well as relevant portions of the original criminal record. It concludes, largely for the reasons stated by the government in its opposition brief, that there is no reason to reconsider the earlier dismissal of Pitera's petition to vacate. The court writes only to address a few specific points.
Pitera submits that his § 2255 petition is timely because the government impeded his ability to obtain evidence of witness perjury by making him pursue time-consuming FOIA procedures. The argument is flawed in several respects. First, it appears that much of the evidence proffered could have been obtained before trial, let alone before the expiration of the Ross/Mickens grace period. See United States v. Diaz, 176 F.3d 52, 106 (2d Cir. 1999) (holding that Rule 33 motion for new trial based on newly discovered evidence would be considered only if movant showed that evidence could not have been discovered earlier even with diligent inquiry). For example, Pitera did not need to make a FOIA request to secure affidavits from various of his criminal confederates attacking the credibility of government agents. In any event, he cannot demonstrate that the government was aware of these belatedly recounted versions of events such that it can be faulted for failing to make disclosure at trial.
Similarly available to Pitera were the public records relating to accomplice witness Frank Gangi's previous arrests, and the scientific writings cited to attack the government's forensic evidence. To the extent Pitera faults his trial counsel for not obtaining these materials for use in cross-examination at trial, he fails to demonstrate that able counsel's strategic decisions to pursue other avenue of impeachment were either objectively unreasonable or prejudicial. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (to establish ineffective assistance, petitioner must show both that counsel's performance was objectively unreasonable and that counsel's errors prejudiced the defense).
This court particularly recalls counsel's cross-examination of the prosecution forensic expert who testified to chemical comparisons between residue found on a shovel stored at the home of a Pitera confederate and soil samples taken from the nature preserve where many of the victims' bodies were buried. Counsel was remarkably effective in transforming what should have been relatively straightforward — and devastating — prosecution testimony into something that sounded convoluted and questionable. There is no reason to think that any greater effect could have been achieved by confronting the witness with some of the materials now put forward by Pitera. Indeed, these materials might only have afforded the expert an opportunity to clarify his position.
As for Frank Gangi, defense counsel conducted an extraordinary cross-examination highlighting the witness's amoral life of violent crime, drug abuse, betrayal, and deceit. Then, to ensure that the jury never forgot the character of this prosecution witness, counsel employed a chilling coup de theatre: he delivered the defense summation before a life-size photograph of Gangi taken prior to his arrest, a satanic grin on his dark face and two semi-automatic pistols raised triumphantly aloft in his hands. When the few facts and abundant speculation now profferred by Pitera about Gangi's arrest history are viewed in this larger context, it is inconceivable that they could have been any more effective in impeaching Gangi than the material actually relied on by counsel. See generally United States v. Gambino, 59 F.3d 353, 364-66 (2d Cir. 1995) (refusing to order new trial based on evidence of undisclosed additional criminal activity by Sammy "the Bull" Gravano).
Pitera nevertheless insists that Gangi's arrest files show that he had possession of certain guns and bags similar to those used in some of the charged murders. Pitera submits that this proves that Gangi was the true killer. Certainly, Gangi candidly acknowledged at trial that he was a direct participant in many of the gruesome murders charged in the indictment. What he explained to the jury, however, was that he had committed these crimes with Pitera. This testimony is not undercut by Pitera's "new evidence." To the contrary, Pitera's involvement in the murders was corroborated in many important respects. The court will cite only two. First, jewelry from some of the murder victims, including one man's wedding ring apparently obtained by hacking off his dead finger, was found in Pitera's home at the time of his arrest. Second, Pitera was intercepted on a court-ordered wiretap telling an associate that the best way to ensure that murder victims were not found was to cut out their lungs to ensure that the bodies could not float to the surface. This was, of course, consistent with the dismemberment that characterized so many of the charged murders.
When the Court of Appeals affirmed Pitera's conviction, it chose not to recount these horrible details of the crimes, noting simply that the evidence "abundantly established" petitioner's guilt. United States v. Pitera, 5 F.3 at 626. Having carefully reviewed the new materials that Pitera has obtained over the years, this court finds no reason to depart from this conclusion. Certainly, Pitera has uncovered nothing that, had it been disclosed at trial, would likely have resulted in a different outcome. See Kyles v. Whitley, 514 U.S. 419, 433 (1995). This is simply not a case in which the undisclosed evidence could "reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict" Id. at 435; accord United States v. Orena, 145 F.3d 551, 557 (2d Cir. 1998).
Similarly unavailing is Pitera's argument that this court's 1992 jury instructions were deficient in light of the recent Supreme Court rulings in Jones v. United States, 526 U.S. 227 (1999) and Richardson v. United States, 526 U.S. 813 (1999). The court's charge and its special verdict form regarding Counts 13 and 14 required the jury to make a specific finding that a silencer, not simply a firearm, had been used in connection with certain charged murders. Thus, Jones's requirement that statutory factors enhancing sentence be submitted to the jury as elements of the crime was satisfied in Pitera's case. Similarly, this court charged as to Count 3 that the jury had to reach unanimous agreement on at least three drug crimes to find the "continuing series" of offenses required by 21 U.S.C. § 848. Indeed, it charged that the jury had to reach unanimous agreement on the particular five persons with whom the defendant committed the series of offenses. This plainly satisfies the requirements subsequently articulated by the Supreme Court inRichardson.
Conclusion
Nothing in Pitera's voluminous submissions excuses his failure to file his § 2255 petition within the Ross/Mickens grace period. Specifically, he has failed to demonstrate that evidence unavailable until after the expiration of that grace period undermines confidence in the outcome of his criminal trial. Neither has he shown that the court's jury charge was deficient in light of Supreme Court decisions reached only in 1999. Finally, Pitera fails to demonstrate that he is actually innocent of the charged crimes, so as to make it appropriate to hear his untimely § 2255 petition pursuant to § 2241. See United States v. Triestman, 124 F.3d at 361.
For all these reasons, the court declines to reconsider its previous dismissal of Pitera's § § 2255, 2241 petition. This case will remain closed. No certificate of appealability is granted.
SO ORDERED.