United States District Court, S.D. New York
May 5, 2004.
UNITED STATES OF AMERICA, -against- JOHN CONTEH, Defendant
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Movant was convicted in 1999 of conspiracy, in violation of
18 U.S.C. § 371, to commit bank fraud and to possess a counterfeit
security and of making false statements to a federal agent in violation
of 18 U.S.C. § 1001, and sentenced principally to a term of imprisonment
of one year followed by three years of supervised release. The conviction
was affirmed. United States v, Conteh, 2 Fed. Appx. 202 (2d Cir. 2001).
Movant then moved for a new trial on the ground of newly discovered
evidence. This Court denied the motion, and the Court of Appeals
dismissed movant's appeal as untimely.
Movant next moved for relief pursuant to 28 U.S.C. § 2255 on a
variety of grounds. This Court denied the motion. United States v.
Conteh, 226 F. Supp.2d 514 (S.D.N.Y. 2002). The Court of Appeals
dismissed the appeal from that order as well.
Movant then moved "for reconsideration due to misleading witness
testimony . . . or in the alternative . . . for new trial based on new
evidence." By order dated September 16, 2003, the Court denied the motion
insofar as it might be regarded as one for relief from the judgment in
the Section 2255 proceeding. By the same order, it transferred the
application to the Court of Appeals pursuant to 28 U.S.C. § 1631 for
a determination whether this Court should consider the motion under
28 U.S.C. § 2255 to the extent the motion might be thus regarded. The
Court of Appeals, as far as this Court is aware, has not yet acted upon
Defendant now has filed another motion, this time to "reliev[e]
defendant from all convictions" on the theory that the Assistant United
States Attorney who tried his criminal case had not filed his oath of
office as required by statute. The motion is supported by copies of
documents obtained from the Department of Justice under the Freedom of
Information Act which contain the requisite oaths with respect to the
assistant, but which bear the handwritten notation "7(C)" in the place in which the assistant's signature should appear.*fn1 But there is
no proof that the assistant failed to file the required oath. Thus, even
if the failure of an assistant to file the requisite oath provided a
legal basis for upsetting a conviction, which is doubtful, plaintiff has
failed to lay a factual predicate for his legal challenge.
Unfortunately, this Court is unable authoritatively to resolve this
baseless application at this time. As defendant seeks to upset his
convictions, this application in substance is a Section 2255 motion.
Defendant already has made and lost one Section 2255 motion. Under the
Antiterrorism and Effective Death Penalty Act, this Court therefore lacks
jurisdiction to consider a second Section 2255 motion absent
authorization by the Court of Appeals. Liriano v. United States,
95 F.3d 119 (2d Cir. 1996). The motion therefore is transferred to the
Court of Appeals pursuant to 28 U.S.C. § 1631 for a determination whether
this Court should consider the motion under 28 U.S.C. § 2255.