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U.S. v. CONTEH

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

ORDER

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 that matter.

  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.

  SO ORDERED.


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