The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Venero Mangano ("Mangano") moves, pursuant to Federal Rule of
Civil Procedure 60(b)(6) ("Rule 60(b)(6)"), for reconsideration
of his § 2255 motion. For the reasons set forth below, the Court
denies the Rule 60(b)(6) motion.
On March 26, 1993, after having been convicted of extortion and
conspiracy to commit extortion, Judge Dearie of this Court
upwardly departed and sentenced Mangano to 188 months'
imprisonment. See Letter from Murray Richman, at 1 (Jan. 21,
2005). The Second Circuit affirmed, see United States v.
Gigante, 39 F.3d 42 (1994), vacated and superceded in part by
94 F.3d 53 (2d Cir. 1996), and the United States Supreme Court denied certiorari. See Aloi v. United States, 522 U.S. 868
On July 31, 1998, Mangano moved to vacate his sentence pursuant
to 28 U.S.C. § 2255, claiming, inter alia, that the government
failed, as required by Brady v. Maryland, 373 U.S. 83 (1963),
to disclose a statement to an FBI agent in 1991 by Alphonse
D'Arco ("D'Arco"), a government witness at a related trial, that
Judge Dearie was susceptible to the influence of organized crime.
On August 30, 1999, this Court denied the motion; in regard to
the Brady claim, the Court held that D'Arco's statement did not
constitute impeachment material and, even if it did, it would
have been cumulative. See Mangano v. United States, 98 CV 4970
(E.D.N.Y. Aug. 30, 1999).
On January 21, 2005, Mangano "request[ed] . . . permi[ssion] to
bring an application pursuant to [United States v. Booker,
125 S. Ct. 738 (2005),] and [United States v. Fanfan,
125 S. Ct. 738 (2005)]. . . ." Letter from Murray Richman, at 2 (Jan. 21,
2005). In a second letter brief, Mangano argued that (1) the
government's failure to disclose the D'Arco statement violated
Brady, and (2) the Brady violation impeded Mangano's ability
to impeach D'Arco's credibility at sentencing. See Letter from
Murray Richman (Apr. 7, 2005). In yet another letter brief,
Mangano asked the Court to recuse itself because the pending
motion calls into question "the integrity of the federal habeas
proceeding." Letter of Murray Richman (May 12, 2005). Lastly,
throughout the letter submissions, Mangano, who is now 83 years
old, referenced various medical conditions from which he suffers
and requested leniency in light of those conditions. See, e.g.,
Letter from Murray Richman (June 2, 2005) ("While we are not
asking for any sympathy on behalf of Mr. Mangano, we do ask,
however, that the Court not disregard Mr. Mangano's declining
health and declining years.").
As an initial matter, Mangano's motion for the Court to recuse
itself in this matter is baseless. The Supreme Court has
expressly held that "judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion[,]" and
that "opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible." United
States v. Liteky, 510 U.S. 540, 555-56 (1994). It cannot be
disputed that the Court has not expressed any opinion that
displays deep-seated favoritism or antagonism let alone one
that would make fair judgment impossible.
Mangano did not raise the Booker/Fanfan claim in his § 2255
motion. The Second Circuit has recently reiterated that relief
under Rule 60(b) is available in habeas proceedings only when
the motion "attacks the integrity of the previous habeas
proceeding rather than the underlying criminal conviction."
Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) (citing
Rodriguez v. Mitchell, 252 F.3d 191 (2d Cir. 2001)). Although
framed as a request for reconsideration, Mangano's request is
based on new grounds for challenging his conviction; therefore,
the Court must treat the request as a second habeas petition.
See Gitten v. United States, 311 F.3d 529, 530 (2d Cir. 2002).
"Before a second or successive application permitted by this
section is filed in the district court, the applicant [must] move in the . . .
court of appeals for an order authorizing the district court to
consider the application." 28 U.S.C. § 2244(b)(3)(a). Moreover,
"[s]econd or successive applications may be heard only if they
involve newly discovered evidence of a potentially dispositive
nature, or a new and retroactive rule of constitutional law."
Adams v. United States, 155 F.3d 582, 583 (2d Cir. 1998)
(citing 28 U.S.C. 2244(b)). The Second Circuit has held that
Booker/Fanfan claims do not fall within either of these
exceptions. See Green v. United States, 397 F.3d 101 (2d Cir.
2005). Thus, if the Court transferred the petition to the circuit
court, the circuit court would undoubtedly deny the motion for a
The Second Circuit however has cautioned that a district court
should not "transfer [a successive petition] to [Second Circuit]
until the prisoner has been informed of the district court's
intent to transfer and afforded a sufficient opportunity to avoid
the transfer by withdrawing (perhaps for later refiling
explicitly as a new collateral attack) the portion of his 60(b)
motion that the district court believes presents new challenges
to the underlying conviction." Harris, 367 F.3d at 82.
Therefore, Mangano is directed to inform this Court, in writing
and within thirty (30) days of the date of this Memorandum and
Order, whether he ...