Federal District Court Opinions
ROBERTS v. U.S., (N.D.N.Y. 11-13-2006) DAMON C. ROBERTS,
Petitioner, v. UNITED STATES OF AMERICA, Respondent.
04-CV-1397, (00-CR-578). United States District Court, N.D.
New York. November 13, 2006
DECISION & ORDER
THOMAS McAVOY, District Judge
I. INTRODUCTION
This Court previously denied and dismissed Petitioner’s
application to vacate his judgement or sentence pursuant to
28 U.S.C. § 2255. See 11/09/05 Dec. & Ord. [dkt. #
18]. Petitioner now moves for reconsideration of the
Court’s decision, or, in the alternative, for a Certificate
of Appealability pursuant to 28 U.S.C. § 2253. The
Government has opposed the motion. For the reasons that
follow, the motion is granted in part and denied in part.
II. THE STANDARD FOR RECONSIDERATION
“The standard for granting [a motion for reconsideration]
is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions
or data that the court overlooked — matters, in
other words, that might reasonably be expected to alter the
conclusion reached by the court.” Schrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995); see also Page 2
Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d. Cir 2000)
(To sustain a motion for reconsideration, Petitioner
“`must demonstrate that the Court overlooked controlling
decisions or factual matters that were put before it on the
underlying motion.'”) (quoting Shamis v. Ambassador Factors
Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999)); Polanco v.
United States, 2000 WL 1346726, at *1 (S.D.N.Y. September
19, 2000); Califano v. United States, 1998 WL 846779, at *1
(E.D.N.Y. September 4, 1998). “The high burden imposed on
the moving party has been established in order to dissuade
repetitive arguments on issues that have already been
considered by the court and discourage litigants from
making repetitive arguments on issues that have been
thoroughly considered by the court [and] to ensure finality
and prevent the practice of a losing party examining a
decision and then plugging the gaps of the lost motion with
additional matters.” Nowacki v. Closson, 2001 WL 175239, *1
(N.D.N.Y. Jan. 24, 2001) (Munson, J.) (internal citations
and quotations omitted). Petitioner “may neither repeat
`arguments already briefed, considered and decided,’ nor
`advance new facts, issues or arguments not previously
presented.'” In re Application of the United States, 396 F.
Supp. 2d 294, 301 (E.D.N.Y. 2005) (quoting Schonberger v.
Serchuk, 742 F. Supp.108, 119 (S.D.N.Y. 1990)); see also
Shamis, 187 F.R.D. at 151 (“[T]he court must not allow a
party to use the motion to reargue as a substitute for
appealing from a final judgment. Therefore, a party in its
motion for reargument may not advance new facts, issues or
arguments not previously presented to the court.”)
(citations and internal quotation marks omitted).
III. DISCUSSION
A. Due Process Claim
On his Section 2255 motion, Petitioner proceeded on three
theories, one of which was that he was denied due process
because the government unknowingly used perjured testimony
to secure Page 3 his conviction. In this regard,
Petitioner asserted that two of the government’s witnesses,
Joseph DallVechia and Joseph Mannese, lied at trial when
(1) DallVechia testified that he did not know Bruno before
the conspiracy was formed; (2) DallVechia and Mannese
testified that the stolen property was stored in a locked
trailer on Petitioner’s property; (3) DallVechia testified
that he and Petitioner traveled together to Philadelphia to
meet with the “fence” for the stolen goods; and (4)
DallVechia testified that he provided cash proceeds from
the sale of the stolen good to Petitioner who, in turn,
distributed the proceeds to Bruno through business checks.
See Pet., p. 6. The Court noted that “[w]hile it would
appear that these claims are procedurally barred because
they could have been raised on appeal but were not,” it
determined not to “engage in an `actual innocence’ analysis
because the claims patently fail[ed] on the merits.”
11/09/05 Dec. & Ord., p. 12.
On the merits, the Court held:
“A Section 2255 motion is not a vehicle for rearguing the
credibility of witnesses.” Conteh v. United States, 226 F.
Supp.2d 514, 519-20 (S.D.N.Y. 2002). Moreover, “a showing
of perjury at trial does not in itself establish a
violation of due process warranting habeas relief.”
Ortega, 333 F.3d at 108. Where the government did not know
about the alleged perjury, “a new trial is warranted only
if (1) the testimony was material, and (2) the court is
left with a firm belief that but for the perjured
testimony, the defendant would most likely not have been
convicted.” Freeman v. United States, 2005 WL 1498289, at
* 4 (E.D.N.Y. June 15, 2005) (citing Conteh, 226 F.
Supp.2d at 519-20 (internal citations and quotations
omitted)).
Beyond presenting affidavits from third parties that, if
believed, would demonstrate merely that DallVechia and
Bruno knew each other well before the conspiracy (an issue
already in dispute before the jury) and that the various
affiants did not see locks on the trailers on Petitioner’s
property, Petitioner has failed to present proof that any
witness lied on a material issue. As referenced above, the
nature of Bruno and DallVechia’s pre-conspiracy
relationship amounted to a credibility issue that was
placed before the jury, and the lack of any
pre-conspiracy relationship was immaterial to the
commission of the crimes. It was also immaterial whether
Petitioner’s trailers had locks on them. The questions of
whether Petitioner took a trip to Philadelphia to meet
the fence, or whether he laundered the proceeds of the
crime through his business, while perhaps strongly
impacting credibility issues of government witnesses, were
not material to the crimes of conviction. Further, even
Page 4 assuming that the witnesses testified falsely in
the manners asserted, there was still sufficient evidence
of Petitioner’s participation in the crimes of conviction
such to leave the Court with the firm belief that, even if
the referenced testimony was false, Petitioner most likely
would have been convicted. See Freeman, 2005 WL 1498289,
at * 4 (rejecting a similar argument based upon “weak and
uncertain evidence” of perjury in the face of strong
evidence of guilt). Therefore, the due process claim is
dismissed.
Id., pp. 12-13.
Petitioner now asserts that the Court’s factual and legal
conclusion were erroneous. Regarding the Court’s factual
conclusions, Petitioner argues that the Court misconstrued
the evidence when it stated that the issue of whether
DallVechia knew Petitioner’s co-defendant, John Bruno,
before the underlying conspiracy was formed was “already in
dispute before the jury.” In making this argument,
Petitioner contends that a footnote in the Decision and
Order was factually inaccurate. See Dec. & Ord., p. 6, n. 2
(“As pointed out in the recent Decision and Order on
co-defendant Bruno’s Section 2255 motion, the question of
whether DallVechia and Bruno knew each other before
engaging in the underlying criminal conduct had been
contradicted by DallVechia’s own testimony at trial, and
examined by defense counsel on cross-examination.”).
Petitioner contends that the question of DallVechia and
Bruno’s prior relationship was not in dispute and that:
the Court misunderstood what Mr. Bruno was saying in his
Petition. The assertion in Bruno’s Petition that —
“[a]s the Court will recall, at trial DallVechia testified
that he had only met this petitioner [Bruno] twice prior
to the hijacking” — was not a claim that DallVechia
testified that he knew Bruno previously. What Mr. Bruno
was saying, was that DallVechia had testified that he had
met with Bruno two times after the purported introduction
by Petitioner, but before the actual hijacking itself
was carried out.
Pet. Mem. L. in Supp. Recon., p. 6 (emphasis in original).
How Roberts knows what Bruno “was saying” in his separate
Section 2255 motion is beyond the Court. But even accepting
Robert’s interpretation of Bruno’s statement, it does not
Page 5 contradict the Court’s interpretation that there was
some testimony from DallVechia that he and Bruno knew each
other before the crimes were committed. Further, in arguing
that this issue was not in dispute before the jury, Roberts
cites to portions of the trial transcript in which
DallVechia was cross-examined about his prior relationship
with Bruno. See id. pp. 6-7. While DallVechia might have
“been unwavering in his testimony that he had never met
John Bruno before the alleged introduction by the
Petitioner,” id. p. 6, DallVechia was cross-examined for
the purpose of challenging this representation. The
cross-examination was clearly intended to, and did, put the
nature of DallVechia and Bruno’s relationship into issue
before the jury. Simply because the cross-examiner was
unable to “crack” DallVechia on the stand does not mean that
the issue was not raised. Petitioner’s argument that the
Court reached a clearly erroneous factual conclusion is
unavailing and presents no viable basis for reconsideration
.
Petitioner also argues that the Court reached an erroneous
legal conclusion when it determined that the purported lies
were not material to the crimes of conviction. The Court
disagrees. Whether DallVechia introduced Roberts to Bruno,
or whether the stolen property was stored in a locked or
unlocked trailer, or even whether DallVechia accompanied
Roberts to New Jersey to meet the fence, does not negate
the essential elements of the crimes of conviction. While
Petitioner may feel that the Government’s case against him
would have collapsed if counsel had presented certain
witnesses or evidence that would have contradicted
DallVechia’s testimony, see Pet. Mem. L. in supp. Rec., p.
11 (“Had the Petitioner’s trial counsel presented the
numerous witnesses assembled by the Petitioner who would
have directly established that DallVechia had outright lied
to the jurors about these critical events, it is
respectfully asserted that his testimony — as well
as Mannese’s — would have been rejected in toto.”),
the Court disagrees. See United States v. Page 6 Stewart,
433 F.3d 273, 296-97 (2d Cir. 2006);[fn1] see also Conteh
v. United States, 226 F. Supp.2d 514, 520-21 (S.D.N.Y.
2002) (rejecting a similar “`for want of a nail, the
kingdom was lost’ sort of argument.”). The evidence, if
presented, would have arguably further impugned
DallVechia’s already maligned credibility, but it would not
have assured Petitioner of an acquittal. Rather, it would
have been “the sort of cumulative impeachment material that
is routinely held insufficient to warrant a new trial
because it does not undermine the confidence in the
verdict.” United States v. Wong, 78 F.3d 73, 82 (2d Cir.
1996) (citations and quotation marks omitted). As the Court
concluded previously, “even assuming that the witnesses
testified falsely in the manners asserted, there was still
sufficient evidence of Petitioner’s participation in the
crimes of conviction such to leave the Court with the firm
belief that, even if the referenced testimony was false,
Petitioner most likely would have been convicted.” Dec. &
Ord. p. 13. Thus, the evidence was not material. See
Stewart, 433 F.3d at 299-300.[fn2] Page 7
Petitioner’s arguments addressed to the due process claim
are simply attempts to fill the fatal gaps as pointed out
by the Court’s previous Decision and Order. Accordingly,
the motion in this regard presents no viable basis for
reconsideration and is denied. See Nowacki, 2001 WL 175239,
at *1.
b. Ineffective Assistance of Counsel Claim
Similarly, Petitioner attempts to reargue the points of
his failed ineffective assistance of counsel claim[fn3] by
rebutting the Court’s conclusions on the “objective standard
of reasonableness” prong of the Strickland test. See
United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001)
(In order to state a cognizable Sixth Amendment claim for
ineffective assistance of counsel, Petitioner must prove:
“(1) counsel’s conduct `fell below an objective standard of
reasonableness,’ and (2) this incompetence caused prejudice
to . . . defendant.”) (quoting Strickland v. Washington,
466 U.S. 668, 687-88 (1984)). Not only is this tact
improper on a motion for reconsideration, Nowacki, 2001 WL
175239, at *1, it is legally unavailing because the Court
concluded that the claim also Page 8 failed under the
second prong of the Strickland test. See Dec. & Ord. p.
6-10. Thus, even if his counsel’s tactical decisions fell
below an objective standard of reasonableness, Petitioner
was not denied constitutionally effective assistance of
counsel at trial. The motion in this regard is denied.
c. Apprendi Claim
Petitioner also argues that the Court should reconsider
Petitioner’s claim brought under Apprendi v. New Jersey,
530 U.S. 466 (2000), because the Court premised its decision
on a legal basis that was not proffered by Petitioner. The
Court previously held:
Petitioner claims that his sentence violated the
principles set forth in Apprendi v. New Jersey, 530 U.S.
466 (2000). In this regard, he alleges that because the
jury did not find facts that supported this Court’s
determination of a sentence enhancement, his sentence is
not constitutionally permissible. Petitioner’s argument is
without merit.
In Apprendi, the United States Supreme Court held that
any fact, other than that of a prior conviction, “that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Id. at 491 (emphasis added).
However, there is nothing in Apprendi “that alters a
sentencing judge’s traditional authority to determine
those facts relevant to selection of an appropriate
sentence within the statutory maximum. . . .” U.S. v.
Garcia, 240 F.3d 180, 183 (2d Cir. 2001); see United
States v. Thomas, 274 F.3d 655, 664 (2d Cir. 2001) (en
banc) (The “constitutional rule of Apprendi does not apply
where the sentence imposed is not greater than the
prescribed statutory maximum for the offense of
conviction.”).
Petitioner was convicted for violating two counts under
section 1951(a), and for violating one count of both
section 371 and section 2314, allowing the Court a maximum
sentence of 240 months for counts one and two each, sixty
months for count three, and 120 months for count four. The
Court sentenced Petitioner for terms of 168 months for
each of counts one and two, sixty months for count three,
and 120 months for count four. Accordingly, since none of
the penalties in Petitioner’s sentence rise above the
statutory maximum, Apprendi does not apply. To the extent
Petitioner argues that his sentence is in violation of
the subsequently decided cases of Blakely v. Washington,
542 U.S. 296 (2004), and United States v. Booker, ___ U.S.
___, 125 S. Ct. 738 (2005), the argument is without merit
because neither Booker nor Blakely apply retroactively to
matters on collateral review. Guzman v. United States,
404 F.3d 139, 140 & 144 (2d Cir. 2005). Page 9 Dec. & Ord.
p. 14.
Petitioner argues, however, that he was not contending
that Blakely or Booker applied retroactively on collateral
review, but only that Apprendi, if correctly applied at his
sentencing as explained by Blakely or Booker, would have
limited his sentence to 33 to 41 months. Pet. Mem. L. in
Supp. Recon., p. 12.[fn4] In this regard, he asserts that
the subsequently decided cases of Blakely and Booker
“explained” that the Apprendi rule applied to the maximum
sentence applicable under the United States Sentencing
Guidelines, not under Congress’ statutory maximum. Id. p.
13. Thus, Petitioner contends,
based upon the “facts reflected in the jury’s verdict,”
Petitioner’s “statutory maximum” was 33 to 41 months.
However, following the addition of a number of
enhancements imposed by the District Court — based
upon its factual findings applying a preponderance of the
evidence standard — Petitioner was sentenced to a
term of 168 months. This sentence both violated the Rule
of Apprendi as well as Petitioner’s constitutional rights.
Id. p. 14. Accordingly, Petitioner argues that the Court
engaged in an erroneous legal analysis when it denied his
Apprendi claim on the basis of Blakely or Booker’s
non-retroactivity. Id. p. 18. Page 10
To the extent the Court misunderstood Petitioner’s
argument, the motion for reconsideration must be granted.
To the extent that the Apprendi claim is reconsidered under
Petitioner’s clarified theory, it must be denied as lacking
in merit. As the Eastern District explained on an identical
argument:
Petitioner . . . was sentenced . . . well before the
January 12, 2005 issuance of the Booker decision. Thus,
under Guzman, to the extent that the Petitioner
collaterally attacks his sentence based on Booker, his
petition must be denied.
After the Guzman decision came down, [petitioner]
attempted to circumvent Guzman’s holding by arguing that
re-sentencing was warranted not based on Booker, but on
Apprendi, which had been decided at the time his
conviction became final. . . . Petitioner argues that
Booker only reaffirms the holding of Apprendi, and
therefore that the rule of law espoused in Apprendi (and
affirmed in Booker) applies to his sentencing and supports
his Sixth Amendment claim.
[Petitioner’s] Sixth Amendment claim based on Apprendi
fails. The Second Circuit, in Guzman, rejected the
argument that Booker simply reaffirms the holding of
Apprendi. In Guzman, the Circuit Court explained: “If
Booker were simply Apprendi again, we would not need to
determine the retroactivity of Booker under Teague: since
Guzman’s conviction was not final when Apprendi issued,
Guzman would be afforded any relief he could get under
Booker.” Guzman, 404 F.3d at 142. Rather, the court
declared: “the result in Booker was not dictated by
Apprendi . . . It cannot be said that the result in Booker
was apparent to `all reasonable jurists’; in Booker
itself, dissenters undertook to explain why the holding in
Booker was not compelled by Apprendi or Blakely.” Id.
(internal citations omitted). Thus, the Petitioner’s
argument that Booker only affirms the prior holding of
Apprendi is without merit.
Lisnoff v. United States, 2006 WL 1367413, at *3-*4
(E.D.N.Y. May 18, 2006).
For the same reasons as those articulated in Lisnoff,
Petitioner’s Apprendi claim is without merit. Consequently,
the claim is dismissed.
IV. CERTIFICATE OF APPEALABILITY
Petitioner also seeks a Certificate of Appealability
pursuant to 28 U.S.C. § 2253. A Certificate of
Appealability will be granted when the petition presents
viable issues upon which reasonable jurists could debate
whether: (a) the sentence was imposed in violation of the
Page 11 Constitution or laws of the United States; (b) the
Court was without jurisdiction to impose such sentence; (c)
the sentence was in excess of the maximum authorized by
law; or (d) the sentence is otherwise subject to collateral
attack. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 1039-1040 (2003); Slack v. McDaniel, 529 U.S. 473,
484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
The Court finds that the instant petition does not present
any such issues. Therefore, a Certificate of Appealability
pursuant to 28 U.S.C. § 2253 is denied.
V. CONCLUSION
For the reasons set forth above, Petitioner’s motion for
reconsideration is GRANTED IN PART and DENIED IN PART. The
motion for reconsideration is granted inasmuch as the Court
reconsiders Petitioner’s Section 2255 Apprendi claim, and
denied in all other respects. Upon reconsideration,
Petitioner’s Section 2255 Apprendi claim is DENIED. Thus,
all claims asserted in Petitioner’s Section 2255 motion
have now been denied and the Petition is DISMISSED.
The Court further finds that Petitioner is not entitled to
a Certificate of Appealability pursuant to 28 U.S.C.
§ 2253. Therefore, Petitioner’s motion for a
Certificate of Appealability is DENIED.
IT IS SO ORDERED.
[fn1] The Second Circuit wrote in Stewart:
We have frequently acknowledged that, even where newly
discovered evidence indicates perjury, motions for new
trials should be granted only with great caution and in
the most extraordinary circumstances. So cautioned, the
trial court’s discretion to decide whether newly
discovered evidence warrants a new trial is broad because
its vantage po int as to the determinative factor-whether
newly discovered evidence would have influenced the
jury-has been informed by the trial over which it
presided.
* * *
Perjury in and of itself is insufficient to justify
relief under Rule 33. Rather, when a trial has been
tainted by false testimony, this Court is called upon to
strike a fair balance between the need for both integrity
and finality in criminal prosecutions by determining
whether false testimony was prejudicial in the sense that
it affected the outcome of the trial. . . . [I]f the
prosecution was not aware of the perjury, a defendant can
obtain a new trial only where the false testimony leads to
a firm belief that but for the perjured testimony, the
defendant would most likely not have been convicted.
433 F.3d at 296-97 (interior quotation marks and citations
omitted).
[fn2] In addressing the question of materiality, the Second
Circuit wrote in Stewart:
Ultimately, whether the prosecution was aware of the
alleged perjury is of no moment, because we conclude that
the testimony in question was not material under either
standard. That is to say, whether we ask if the verdict
“might have been different” or if it “probably would have
been different” had the jurors known (i) the truth about
Lawrence’s involvement in the ink testing and his
awareness of his colleagues’ book prop osal discussing
densitometry and (ii) that Lawrence had lied under oath
about those matters, the answer is no. Therefore, we
conclude that the District Court did not err in finding
that Lawrence’s false statements were not material either
as to the factual elements of the Government’s case or
for impeachment value, had the misrepresentations been
exposed at trial.
433 F.3d at 299-300.
[fn3] Petitioner argued that his trial counsel was
constitutionally ineffective in three material respects: (1)
she failed to present witnesses who would have demonstrated
that Joseph DallVechia testified falsely when he asserted
that Petitioner introduced DallVechia to co-defendant John
Bruno for purposes of carrying out the underlying hijacking
and theft of computer parts and that, before this
introduction, DallVechia and Bruno did not know each other;
(2) she failed to produce a chart prepared by Petitioner,
or call Petitioner or any other witness, to establish that
the checks written by Petitioner to Bruno were legitimate
business transactions and not, as the Government contended,
the distribution of profits from the underlying crimes; and
(3) she failed to present a witness who would have
testified that Petitioner always kept the trailers on his
pro perty unlocked and, therefore, would have established
that DallVechia testified falsely when he stated that the
stolen computer chips were kept in a “locked trailer” on
Petitioner’s prop erty.
[fn4] Petitioner asserts:
In his Petition, Damon Roberts argued that his sentence
must be vacated because it was imposed in violation of the
Rule of Apprendi, and therefore, in violation of his
rights guaranteed by the by the Fifth and Sixth Amendments
to the United States Constitution. He pointed out that
Apprendi was decided in June of 2000, and insofar as he
was sentenced on October 22, 2002, the Rule of Apprendi
applied to his case.
Pet. Mem. L. in Supp. Recon., p. 12. He further asserts:
In the Writ filed by Petitioner — and this is a
matter of central importance to the analysis of his
Apprendi claim — he specifically explained that he
was not asking this Court to retroactively apply any “new
rule of criminal procedure” — either from Blakely
or Booker, but rather referred to the decision in Blakely
only for its holdings that; (1) the Rule of Apprendi has
always stood for the principle — from the time
Apprendi was decided — that it was unconstitutional
for a sentencing judge to impose a sentence greater than
that authorized by the jury’s verdict, and (2) the
original formulation of the “Rule of Apprendi” and the
“statutory maximum” comp onent thereof, were not modified
or altered in any subsequent decision(s) by the Court,
including Ring, Harris, and/or Blakely.
Id.. Page 1