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MANGANO v. U.S.

July 8, 2005.

VENERO MANGANO, Movant,
v.
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.

  BACKGROUND

  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 The Second Circuit affirmed, see United States v. Gigante, 39 F.3d 42 (1994), vacated and superceded in part by 94 F.3d 53 (2d Cir. 1996), and the United States Supreme Court denied certiorari.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 (1997).

  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.").

  DISCUSSION

  A. Recusal

  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 second petition.

  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 ...


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