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Vega v. United States

September 2, 2008

JOSE MARTIN VEGA, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

After a fourteen week jury trial, petitioner, Jose Martin Vega, was convicted in 1995 on fifteen counts of racketeering and drug activity.*fn1 Thereafter, petitioner was sentenced to four concurrent life sentences plus an additional ninety years. Presently before the Court is petitioner's motion pursuant to Federal Rule of Civil Procedure 60(b), seeking reconsideration of this Court's September 29, 2001 Memorandum and Order denying petitioner's motion under 28 U.S.C. § 2255.*fn2 Petitioner also seeks an evidentiary hearing*fn3 and appointment of counsel*fn4 . For the reasons set forth below, petitioner's motions are denied.

BACKGROUND

Factual History

The following facts are essentially undisputed and are taken from court records, the parties' submissions in connection with the present motion, and previous decisions in this case, familiarity with which is presumed.

Petitioner, William and David Mora, Leo Contrera, and Love Brooks were each convicted after a fourteen-week trial in the fall of 1995 of participating in the Mora brothers' crack distribution organization (the "Mora gang" or the "gang") in Brooklyn, New York. The trial detailed ten years of crack dealing by the Mora gang and the violence used by the gang in its attempt to maintain its territory. Petitioner became involved in the gang's affairs several months before the gang's activities came to an end. Evidence relating to petitioner's involvement in several violent shootouts organized by gang leader William Mora during this period came principally from accomplices Walter Richburg and Timothy Cyrus.

In the fall of 1993, a group of drug dealers operating out of the Fiorentino Housing Project (also known as the Pitkin projects) began competing with the Mora gang, which had a sales operation or "spot," located near the project. Mora hired various "hitmen," including Petitioner, to retaliate against the Pitman Projects crew. Petitioner's involvement included participation in various acts of violence on October 28, 1993, November 8, 1993, and February 10, 1994, which resulted in injury and death.

At the conclusion of the trial, the jury convicted petitioner of all fifteen charges against him, and this Court sentenced him to life terms on count 1 (18 U.S.C. § 1962(c) (RICO)), count 2 (18 U.S.C. § 1962(d) (RICO conspiracy)), count 34 (18 U.S.C. § 1959(a)(1) (murder in aid of racketeering)), and count 44 (21 U.S.C. § 846, conspiracy to distribute and possess with intent to distribute cocaine base and heroin), and to concurrent ten and twenty-year sentences on the remaining counts.

Procedural History

In June 1999, following his unsuccessful appeal, petitioner moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This motion was denied in a 39-page Memorandum and Order dated September 29, 2001, Vega v. United States, CV-99-3229 (CPS)(E.D.N.Y. September 29, 2001). In his habeas petition, petitioner claimed ineffective assistance of counsel, erroneous jury instructions on the elements of aiding and abetting, prosecutorial misconduct, improper testimony by key prosecution witnesses, and insufficient evidence to support a conviction on the count of narcotics distribution. This court rejected petitioner's ineffective assistance claims on the merits and found the remaining claims to be procedurally-barred, as petitioner failed to raise them on direct appeal and was unable to demonstrate cause for failing to raise these issues or prejudice resulting therefrom. Id. at 34-38. Petitioner also filed three separate motions to amend his habeas petition pursuant to 28 U.S.C. § 2242,*fn5 which this court found to be time-barred under the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"). Id. at 12-21. Concluding that "petitioner ha[d] not made a substantial showing of the denial of a constitutional right with respect of any of his claims," this court denied petitioner's application for a certificate of appealability. Id. at 39.

By motion filed October 29, 2004, petitioner sought reconsideration under Rule 60(b) of the denial of the Section 2255 petition, contending that his sentences under certain counts should be vacated in light of Blakely v. Washington, 542 U.S. 296 (2004). This court denied the motion on May 10, 2005, holding that the motion was not within the scope of Rule 60(b) because it questioned the underlying conviction and sentence instead of the prior habeas proceeding. See Vega v. United States, 2005 WL 1124512, at 4 (quoting Gitten v. United States, 311 F.3d 529, 534 (2d Cir. 2002).

On December 1, 2005, Petitioner filed the motion now before this Court pursuant to Federal Rule of Civil Procedure 60(b), seeking reconsideration of the September 29, 2001 memorandum and order denying his Section 2255 petition.

Petitioner states that in March 2004 he was referred by the Bureau of Prisons for a mental health evaluation to the U.S. Medical Center for Federal Prisoners in Springfield, Missouri. According to the evaluation, medical professionals found that petitioner has "a history of depression and antisocial personality disorder." Petitioner's Ex. 1 (Response to Request for Administrative Remedy).*fn6 He asserts that the mental health evaluation constitutes new evidence of his mental condition, demonstrating that he could not have formed the requisite intent for the commission of the offenses of which he was convicted. Petitioner also asserts that counsel was ineffective for neglecting to request a mental evaluation before trial or sentencing. The government contends in its response papers that the Rule 60(b) motion should be treated as a successive attack on the underlying judgment and transferred to the Second Circuit to decide whether petitioner should be granted leave to file a second Section 2255 petition. Alternatively, the government contends that the motion be denied because it attacks the underlying conviction and sentence and is therefore not within the scope of Rule 60(b). See Government's Opposition Memorandum, pp. 4-5.

By letter dated July 10, 2006, Petitioner states that following the government's suggestion in its response papers, he filed an application in the Second Circuit, requesting that the Court of Appeals permit him to bring a successive 28 U.S.C. § 2255 petition. The Court of Appeals denied petitioner's application, "as it does not satisfy the criteria set forth in 28 U.S.C. § 2255," Vega v. United States, No. 06-2182, (2d Cir. 2006), but stated that the denial was "without prejudice to petitioner refiling his application accompanied by copies of the medical records that allegedly demonstrate his lack of competence and/or ability to form the intent required for conviction on the charges at issue." Id (citing Fed. R. Civ. Proc. 60(b)). Accordingly, based on petitioner's July 10, 2006 letter and the Second Circuit's order, this ...


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