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ROCCISANO v. UNITED STATES

July 25, 1996

VINCENZO ROCCISANO, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Petitioner brings this second motion pursuant to 28 U.S.C. § 2255 seeking to challenge his sentence. Petitioner claims, through counsel, that the Government obtained his conviction and sentence in violation of the Fifth and Sixth Amendments to the Constitution, specifically alleging that (1) the Government improperly deprived him of the testimony of a witness in his defense, (2) the district court's incorrect assessments of drug weight, level of participation, and responsibility for the acts of his con-conspirators resulted in an unduly harsh sentence, and (3) counsel rendered ineffective assistance due to Government interference.

 Respondent moves to dismiss the petition as an abuse of the writ. The Government argues that this second collateral attack on Petitioner's conviction and sentence should be dismissed because all of the facts and circumstances supporting his claims were known to him at the time of both his direct appeal and his first § 2255 motion. In addition, the Government argues that the petition is without merit.

 Petitioner has filed a traverse opposing the Government's motion.

 I. BACKGROUND

 On August 3, 1989, a jury convicted Petitioner Vincenzo Roccisano on all three counts in which he was charged. On Count One, the jury found that Petitioner and his co-conspirators intended to import in excess of one kilogram of heroin and export in excess of five kilograms of cocaine. On Count Two, the jury found that Petitioner and his co-conspirators had conspired to distribute some amount of heroin and cocaine domestically. On Count Three, the jury found that Petitioner and his co-conspirators had attempted to export five kilograms or more of cocaine. On March 9, 1990, the Honorable Robert J. Ward, U.S.D.J., sentenced Petitioner to concurrent terms of 235 months' imprisonment, to be followed by five years supervised release. Petitioner's conviction and sentence were affirmed by the United States Court of Appeals for the Second Circuit on September 19, 1990. United States v. Batista, No. 90-1167 (2d Cir. Sept. 10, 1990).

 Petitioner filed his first § 2255 petition pro se on December 31, 1991. Roccisano v. United States, No. 92 Civ. 0323 (RJW) (S.D.N.Y. filed Dec. 31, 1991). Petitioner there claimed that his three retained attorneys -- one for trial, another for sentencing, and yet another for appeal -- had collectively rendered him constitutionally ineffective assistance by: (1) preventing him from testifying at trial; (2) failing to present a defense; and (3) neglecting to cite Sentencing Guidelines § 1B1.3, Application Note 1, either at sentencing or on appeal. Petitioner claimed that the cited note from the Sentencing Guidelines would have resulted in a finding that the drug amounts dealt in by his confederates were not reasonably foreseeable by him. Judge Ward denied each of Petitioner's claims in a ten-page Memorandum Decision filed on July 9, 1992. Judge Ward applied the two-prong test mandated by Strickland v. Washington, 466 U.S. 668, 687-88, 693-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1988), and found that Petitioner had not been provided ineffective assistance of counsel. Judge Ward found the other alleged failings both meritless and waived by failure to raise on direct appeal. Roccisano v. United States, 1992 U.S. Dist. LEXIS 9949, No. 92 Civ. 0323 (RJW) (S.D.N.Y. July 9, 1992).

 On appeal of denial of his first petition, Roccisano abandoned his claim of the failure of his counsel to present a defense, and only raised the sentencing issue. The Second Circuit affirmed Judge Ward's ruling. Roccisano v. United States, 992 F.2d 321 (2d Cir. 1993) (Summary Order).

 II. DISCUSSION

 In McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991), the Supreme Court set out the appropriate standard for analyzing a habeas petition for abuse of the writ:

 McCleskey v. Zant, 499 U.S. 467, 494-95, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). While McCleskey dealt with a petition under 28 U.S.C. § 2254, the abuse of the writ doctrine developed therein "applies equally to § 2255 petitions." Femia v. United States, 47 F.3d 519, 523 (2d Cir. 1995).

 The Government has met its burden in pleading abuse of the writ, having set out its claim "with clarity and particularity, . . noting petitioner's prior writ history, identifying the claims that appear for the first time, and alleging that petitioner has abused the writ." McCleskey, 499 U.S. at 494. Accordingly, the burden now rests upon the petitioner to show both cause for the failure to raise the claim in the first petition and prejudice from the errors alleged. Id. at 493-94. In analyzing cause and prejudice, the Court will examine each of Petitioner's claims separately.

 As previously stated, Petitioner makes three basic claims: first, that his right to due process was violated when the prosecutor and trial judge allegedly drove one of his witnesses, Dominico Agostino, from the stand with warnings about perjury and lying on the stand, see Webb v. Texas, 409 U.S. 95, 34 L. Ed. 2d 330, 93 S. Ct. 351 (1972); second, that subsequent changes in the Sentencing Guidelines show his sentence to have been based on false information and invalid premises; and third, that his Sixth Amendment right to counsel was violated through governmental interference, namely, through the threatening of a key witness and through ex parte communications with the Probation Office.

 A. Agostino's Refusal to Testify: the Webb v. Texas Claim

 Under McCleskey, Petitioner must show cause and prejudice for his failure to raise each of his present claims in his prior § 2255 petition. Petitioner argues in his traverse that the filing of this successive petition was due to excusable neglect, and that the petition should not be dismissed because to do so would be inequitable. Pet.'s Traverse at 1-2. By arguing excusable neglect, Petitioner appears to be presenting his argument as to why he has satisfied the cause prong of the showing required under McCleskey. Petitioner contends that his failure to raise the present claims in his first petition "is primarily attributable to external impediments erected by the Respondent," relying on the fact that English is his second language and an allegation that the law library at F.C.I. Petersburg -- where Petitioner was incarcerated at the time of preparing his first petition -- was insufficient, in that various law books were missing, had been cannibalized, or were not kept current. Likewise, Petitioner claims that the paralegal on duty at F.C.I. Petersburg was unable to provide meaningful assistance. Petitioner posits that this amounts to a violation of Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977), and constitutes cause (in Petitioner's language, excusable neglect) for his failure to raise the Webb v. Texas claim in his first habeas petition. Pet.'s Traverse at 1-4.


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