United States District Court, E.D. New York
July 8, 2005.
VENERO MANGANO, Movant,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
MEMORANDUM & ORDER
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Gigante, 39 F.3d 42 (1994), vacated and superceded in part by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.
B. Booker/Fanfan Claim
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 wishes the Court to forward his January 21,
2005 letter request to the circuit court. Failure to comply with
this directive will result in dismissal of the request.
C. Claims Involving D'Arco's Statement
Rule 60(b)(6) authorizes a court to set aside judgment only
"where there are extraordinary circumstances, or where the
judgment may work an extreme and undue hardship[.]"*fn1 Marrero Pichardo v. Ashcroft,
374 F.3d 46, 56 (2d Cir. 2004) (citation and internal quotations omitted;
alteration in original). It is well-established that Rule
60(b)(6) is not a vehicle for simply relitigating the merits of a
case. See Fleming v. New York Univ., 865 F.2d 478, 484 (2d Cir.
1989). In his Brady claim, Mangano attempts to reargue a claim
that was previously rejected by the Court; Mangano is thus not
entitled to relief under Rule 60(b)(6).
In a similar vein, Mangano is not entitled to relief in regard
to his claim that the Brady violation impeded his ability to
impeach D'Arco's credibility. This claim is merely another means
of rearguing the Brady claim.
A motion for reconsideration of a § 2255 motion is not the
vehicle for the Court to grant leniency in light of Mangano's
deteriorating health. Mangano's concerns are better addressed to
the Bureau of Prisons, which pursuant to 18 U.S.C. § 3582(c)(1)(A)(I), may move for a reduction of the term of his
imprisonment if "extraordinary and compelling reasons warrant
such a reduction."
For the foregoing reasons, Mangano's Rule 60(b)(6) motion is
denied. Mangano should inform the Court within thirty (30) days
if he wishes the Court to forward his January 21, 2005, letter
request to the Second Circuit.
The Court determines that a certificate of appealability will
not issue since Mangano has failed to make a substantial showing
of the denial of a federal right. See 28 U.S.C. § 2253; see
generally Kellogg v. Strack, 269 F.3d 100, 102 (2d Cir. 2001)
(holding that certificate of appealability is required to appeal
denial of Rule 60(b) motion when underlying judgment is denial of
a habeas petition.