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Michael Pizzuti v. United States of America

August 18, 2011

MICHAEL PIZZUTI, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.
ANGELO DIPIETRO, PETITIONER, UNITED STATES OF AMERICA, RESPONDENT.
UNITED STATES OF AMERICA, PLAINTIFF,
v.
ANGELO DIPIETRO, ET AL., DEFENDANT.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge:

OPINION AND ORDER

I. Introduction

By motions dated July 23, September 13 and September 27, 2010 (Docket Item 5 in 10 Civ. 2585 and Docket Items 330 and 334 in 02 Cr. 1237), petitioners Angelo DiPietro and Michael Pizzuti move for discovery. For the reasons set forth below, the motions are granted in part and denied in part. Specifically, petitioners are entitled to all FBI Form 302's and notes concerning interviews with or debriefings of Maurizio Sanginiti, including an unredacted version of the Form 302 DiPietro received in response to his FOIA request. Furthermore, if the Form 302, dated March 28, 2005, produced in pretrial discovery is not identical to the unredacted version of the Form 302 produced in response to DiPietro's FOIA request, the government is also to provide an explanation of why two different versions of the same document were prepared. The government is also directed to produce the original wiretap application for Pizzuti's telephone number, 914-490-1007 if the application is in the government's possession, custody or control. The motions are denied without prejudice to renewal in all other respects.

II. Facts

A. Facts Giving Rise to

Petitioners' Convictions*fn1

1. Background

Petitioners' convictions arose out of numerous violent crimes committed between 2001 to 2003, including crimes committed in an effort to recover money from John Perazzo, a pyramid scheme operator. DiPietro's convictions stemmed from three types of offenses: (1) those involving the extortion of Perazzo; (2) those involving a home-invasion robbery conspiracy, and (3) loansharking. Pizzuti's convictions were related solely to the extortion of Perazzo. DiPietro and Pizzuti were members of two rival groups of disgruntled investors competing for priority in reimbursement by Perazzo.

Beginning in 2001, petitioners began extorting money from Perazzo, an investment advisor who promised financial returns to petitioners that he could not deliver. Perazzo's fraudulent activity is not in dispute; he was arrested and charged by the Westchester County District Attorney's Office ("WCDAO") on August 31, 2001, on crimes relating to his Ponzi scheme. He pled guilty as part of a state cooperation agreement.

2. The Extortion by Pizzuti's Group

Perazzo's pyramid scheme paid promised returns to investors through March 2001 (Tr. 1118).*fn2 In April 2001, investors began having difficulty getting paid by Perazzo or even contacting him (Tr. 1118-19, 1376-77). Various investors began suspecting that Perazzo was running a Ponzi scheme (Tr. 1379, 1419). On May 10, 2001, Pizzuti told co-defendant Harold Bringman that Perazzo was "taking from Peter to pay Paul, trust me" (Tr. 1379). Pizzuti subsequently began using force and threats of force to recover money from Perazzo (Tr. 1418-20).

On May 30, 2001, Pizzuti organized a group to confront Perazzo and pressure him for money (Tr. 1399-1400, 1405). Pizzuti arranged a confrontation at Perazzo's home between Perazzo and Bringman, Manny Pereira and others (Tr. 1405). At Pizzuti's behest, Pereira threatened Perazzo, kicked lights and broke other property (Supplemental Memorandum of Movant Michael Pizzuti, filed August 30, 2010 ("Pizzuti Supplemental Habeas Memo") (Docket Item 327 in 02 Cr. 1237), at 8, citing GX 112 at 2; Tr. 1399). Pizzuti later told co-defendant Angelo Capalbo, "today, I set [Perazzo] . . . up with another ten . . . guys . . . so I squeezed him real good" (Pizzuti Supplemental Habeas Memo at 8, citing GX 115 at 2). On June 6, 2001, Perazzo gave $10,000 to Pizzuti (Pizzuti Supplemental Habeas Memo at 8, citing GX 125 at 2-3). On June 11, 2001, a group again gathered at Perazzo's house and pressured him for more money, and Pizzuti later bragged, "it was the same gimmick like the last time" (Tr. 1423). Pizzuti described Perazzo's reaction to the meeting, stating, "the fucking guy came like a lamb, you know, taking all the fucking insults from everybody . . . all kinds of names" (Tr. 1424). Pizzuti organized these events in a way that he could disavow his involvement and could appear as Perazzo's protector so that Perazzo would be more likely to pay him (Tr. 1418-20).

On June 20, 2001, Pizzuti conspired with his brother, Ralph, to use a gun to induce payment from Perazzo (Tr. 1425-26). When Ralph Pizzuti left his house with a gun, Ralph's wife called Michael Pizzuti seeking an explanation (Tr. 1426). Michael Pizzuti explained that Ralph took the gun to ensure that Perazzo would pay (Tr. 1426). Michael Pizzuti told Ralph Pizzuti's wife that Perazzo "[has] got to collect a lot of money and as soon as he collects it, he's got to pay" (Tr. 1426). When Ralph Pizzuti's wife stated that Perazzo was running a Ponzi scheme, Michael Pizzuti replied, "[w]e're all going to get our money, trust me" (Pizzuti Supplemental Habeas Memo at 9, citing GX 132 at 4).

3. The June 29, 2001

Kidnapping by DiPietro's Group

In Spring 2001, co-defendant Maurizio Sanginiti recruited DiPietro to collect from Perazzo because of DiPietro's reputation as a "tough guy" who excelled at collecting money (Tr. 1123-26, 1912-14, 2562-63). On June 28, 2001, following his receipt of a check for $147,000 from Perazzo that the drawee bank refused to pay, Sanginiti agreed with DiPietro and Capalbo to kidnap Perazzo (Tr. 1126, 1460, 1484, 1934, 2154, 2574-75). The kidnapping was intended to ensure they were repaid before Pizzuti (Tr. 1126). On June 29, 2001, Perazzo was kidnapped in Yonkers at the Cross County Shopping Center (Tr. 1134-35). Joseph Genua, Richard Wieland and Frank Taddeo were among the individuals involved (Tr. 1136-37).

The kidnapping took place as follows: Sanginiti, Genua and others waited in a white van in a parking lot near an Applebee's restaurant for Perazzo to be brought over to them (Tr. 1134-44, 1150, 1170-71, 1934, 1939, 1985). When Perazzo reached the van, Genua grabbed Perazzo by the neck, placed him in the front seat and told Perazzo "to shut the fuck up and do what I tell you" (Tr. 1139-40). Genua, who was in back of Perazzo in the van, wrapped his arm around Perazzo's neck and held Perazzo in the seat (Tr. 1141). Perazzo began "sweating, changing colors [and was] nervous [and] stuttering" (Tr. 1140).

The kidnappers took Perazzo to the basement of DiPietro's house in Mount Vernon, New York (Tr. 1141-44). Perazzo was stripped to ensure he wasn't wearing a recording device (Tr. 1157-58, 1943). DiPietro held a revolver to Perazzo's face and asked when Perazzo would come up with the money (Tr. 1158-59). Genua threatened to blow off Perazzo's genitals with an explosive device (Tr. 1161-62, 2527-33, 2567). Perazzo eventually told his kidnappers he had money in the trunk of his car (Tr. 1163, 1165). Genua and DiPietro's son, Anthony DiPietro, returned to the Cross County Shopping Center and retrieved $11,000 from Perazzo's car, and Perazzo was released (Tr. 750, 1163, 1168-69). Following the kidnapping, Genua stayed at Perazzo's house for a few days to monitor Perazzo at DiPietro's behest and control any money that came into Perazzo's possession (Tr. 1187, 2554).

On June 30, 2001, DiPietro and others met with Perazzo to pressure him not to report the kidnapping and to repay the money (Tr. 1175-76, 1494, 2052-53). During the meeting, Perazzo's car was searched for more money (Tr. 1180, 1183-86, 1494-95, 1616-20). No money was found, but a letter was found that Perazzo had written to the FBI and other law enforcement authorities (Tr. 1180, 1183-86, 1494-95, 1582, 1616-20). The letter read that "[b]y you receiving this letter, I am either dead or kidnapped again and will shortly be dead" (Tr. 1618). Perazzo's letter stated that he had been kidnapped from Applebee's on June 29, 2001 by Sanginiti, Capalbo, "another Angelo and a Frank" (Tr. 1618). The letter stated that Pizzuti would know the full names of Perazzo's kidnappers and gave Pizzuti's name and business and home addresses and telephone numbers (Tr. 1618). The letter further stated that an attorney named Al Mosiello was also involved (Tr. 1619). The letter gave details of the "drastic actions" that had been taken against Perazzo, including threats to "[c]ut [him] up and put [him] into body bags" (Tr. 1619).

4. The July 9, 2001 Kidnapping by Pizzuti

On July 9, 2001, DiPietro's associate, Weiland, was staying in Perazzo's home to monitor Perazzo (Tr. 1535-36, 2567-68). Pizzuti found this out, and Pizzuti's group headed to Perazzo's house out of concern that Perazzo was favoring DiPietro's group with respect to the repayment of money (Tr. 1188, 1521-24, 1534-36). When Pizzuti's group arrived, Weiland called Sanginiti to inform him (Tr. 1188, 1831, 2569). Sanginiti, in turn, called DiPietro and Capalbo and arranged a meeting (Tr. 1188). DiPietro also called Din Celaj and Marc Nickolson and told them to meet him and to bring guns to the meeting (Tr. 1188, 4316-17). DiPietro's group devised a plan to take Perazzo away from Pizzuti's group (Tr. 4320).

When DiPietro's group arrived at Perazzo's house, Pizzuti was holding a rifle to Perazzo's face (Tr. 1196, 1199-2000, 1256-60, 1539, 2418-32, 3750). Pizzuti told DiPietro's group that they had to go through him if they wanted money from Perazzo (Tr. 1196, 1217-18, 4327). Pizzuti then dragged Perazzo out of the house at gunpoint and threw him into the back of a car (Tr. 1197, 1218-20, 1266, 2435-36, 4330-31). Pizzuti eventually took Perazzo to Nyack, New York, where Perazzo spent the night in a hotel with Pizzuti associate Carl Macchiarulo before making a bank transfer of $30,000 to Macchiarulo the following day (Tr. 1534-35, 1557, 1626, 1635-36).

Pizzuti's group left Perazzo's house at the same time Pizzuti left with Perazzo (Tr. 1266, 1530-31). Bringman was the last member of Pizzuti's group to leave, and Sanginiti and Capalbo ordered Celaj to grab Bringman to find out where Pizzuti was taking Perazzo (Tr. 1266-68, 1530-31). As Bringman drove away, DiPietro instructed Celaj to "shoot his fucking ass, shoot his fucking ass" (Tr. 4334).

A car chase commenced on the southbound Hutchinson River Parkway, with Celaj and Nickolson pursuing Bringman at speeds exceeding 100 miles per hour (Tr. 1224-26, 1268, 1528-29, 3738-39, 4334). Celaj fired several shots and hit Bringman's car, but Bringman escaped while Celaj crashed into a guardrail (Tr. 1225-26, 1233-34, 1271, 1537, 3738-42, 4336). That evening, the rival groups decided to peacefully join forces to coordinate the recovery of money (Tr. 1233-34, 1272-73, 1545, 1577). This joint cooperation lasted until Perazzo's arrest (Tr. 1273-75, 1278-79).

5. Destruction of Evidence on Perazzo's Computer

On July 10, 2001, Pizzuti, Sanginiti and Capalbo met with attorney Mosiello for advice concerning the letter Perazzo had written to the FBI and other law enforcement authorities that they had found in Perazzo's car (Tr. 1279, 1548, 1620-21). Mosiello advised them that arrests might occur if the authorities received the letter (Tr. 1279, 1548, 1620-21). Following the meeting, Capalbo and Mosiello went to Perazzo's house to delete any files on Perazzo's computer related to the investment scheme, particularly the letter (Tr. 1302-03, 1319, 1569-71, 1621, 2376-77, 2695, 2820-22). Pizzuti called Capalbo and Mosiello while they were at the house and encouraged them to erase anything with Pizzuti's name or those of his conspirators (Pizzuti Supplemental Habeas Memo at 16-17, citing GX 169 at 2-3).

Following Perazzo's arrest, the WCDAO seized, inter alia, Perazzo's computer (Tr. 3266-67). A subsequent forensic analysis determined that approximately 60 computer files were deleted on July 10, 2001 (Tr. 3288). While 43 of the files no longer existed on the hard drive, contents of 17 files were recovered (Tr. 3300, 3306-07). A full copy of Perazzo's letter to the FBI and other agencies was not found, but traces of prior drafts of the letter were found (Tr. 3307-09, 3311-14, 3344-45).

6. DiPietro's Involvement in Home Invasion Robberies

In addition to extorting Perazzo, DiPietro was involved in a series of robberies of residences in Westchester County, New York, that he believed contained large amounts of cash (Tr. 1648-50). In the Spring of 2001, DiPietro began planning a robbery in Eastchester, New York, with Capalbo, Sanginiti, Nickolson and Celaj (Tr. 1658-59, 3770-71, 4364). DiPietro's relatives owned the residence, and he believed there was $2.3 million in the house because of the family's involvement in the real estate business (Tr. 3770-72, 4365). DiPietro told at least one conspirator that a father, mother, son and grandmother lived in the house, and to "try your hardest not to hurt no one [sic] but if you have to, do what you got to do" (Tr. 4365-66).

On July 18, 2001, Celaj, Nickolson and Ded Nicaj entered the Eastchester home, believing it was empty (Tr. 4367-68, 4372). The men heard voices in the home, however, and confronted the mother and grandmother with a gun (Tr. 4372). Nicaj attempted to tie the mother up, and Celaj pointed the gun at her (Tr. 4372). As the mother was leading Celaj to the money, the son walked into the house (Tr. 4374-75). Celaj pointed the gun at the son, and the situation soon became "out of control," as "everybody was screaming in the house" (Tr. 3795-96). One of the conspirators yelled that he had spotted police, and the men fled without taking any money (Tr. 4375-76).

While Nickolson and Nicaj were arrested immediately after the bungled robbery, Celaj called a lookout to pick him up and escaped (Tr. 3803-04, 4376-77). Celaj subsequently called DiPietro to set up a meeting, and Celaj and DiPietro met and discussed the failed robbery (Tr. 4378-79). DiPietro told Celaj, "you have to lay very low . . . it's crazy up there in Eastchester, too much cops [sic]" (Tr. 4379).

B. Convictions and Appeals

On July 12, 2005, petitioners were convicted following a jury trial before the late Honorable Shirley Wohl Kram, United States District Judge. In 2006, Judge Kram sentenced DiPietro to 708 months in prison and Pizzuti to 219 months in prison (Docket Items 204, 206 in 02 Cr. 1237).

On appeal, DiPietro joined in his co-defendants' arguments and raised the following issues: (1) the disqualification of his trial counsel for previously representing a co-defendant violated his Sixth Amendment right to counsel of his choice; (2) the dismissal of the jury without inquiry prior to it being sworn --- due to an incident where a co-defendant collapsed in court because of a serious illness --- violated DiPietro's Sixth Amendment right to an impartial jury and his Fourteenth Amendment right to due process; (3) the district court infringed the public's and the press's First Amendment right of access and DiPietro's Sixth Amendment right to a public trial by conducting court proceedings during trial in the robing room outside DiPietro's presence; (4) his Sixth Amendment right of confrontation was violated by the admission of testimonial hearsay over his objection; (5) the government failed to present sufficient evidence to establish the jurisdictional nexus and effect on interstate commerce to satisfy the essential elements of 18 U.S.C. §§ 894 and 1951; (6) the district court erred in denying his motion to vacate and dismiss one of the two counts alleging a violation of 18 U.S.C. § 924(c) on the ground that both counts involve the same unit of prosecution; (7) his right to a fair trial was violated by denying his trial counsel the opportunity to object to the court's jury instructions as required by the Federal Rules of Criminal Procedure; (8) the district court erred in instructing the jury that the government is not required to prove each and every element of each of the alleged crimes beyond a reasonable doubt, and (9) the cumulative effect of certain rulings denied his Fourteenth Amendment right to due process and a fair trial (Brief of Defendant-Appellant Angelo DiPietro, dated March 16, 2007, available at 2007 WL 7072774).

On appeal, Pizzuti joined in the arguments of his co-defendants and raised the following independent issues: (1) the district court erred in permitting the prosecution to introduce, over defense objection, Nickolson's testimony of purported conspirator statements made by Celaj following the July 9, 2001, incident at Perazzo's house, where there was no evidence that Pizzuti had ever conspired with either Nickolson or Celaj, and (2) the evidence with respect to the obstruction of justice charge failed to prove a nexus between the intentional destruction of evidence and the likelihood of affecting the administration of justice, and (3) the evidence failed to prove that defendants "corruptly persuaded" Mosiello (Brief of Defendant-Appellant Michael Pizzuti, dated March 27, 2007, available at 2007 WL 6475428).

In 2008, DiPietro and Pizzuti's appeals were summarily denied by the Court of Appeals for the Second Circuit, and the Supreme Court denied writs of certiorari to both petitioners. United States v. Genua, 274 F. App'x 53, 53-56 (2d Cir. 2008), cert. denied, Pizzuti v. United States, 129 S. Ct. 1378 (2009), and DiPietro v. United States, 129 S. Ct. 1643 (2009). The Second Circuit held, inter alia, that: (1) the trial court did not abuse its discretion by disqualifying DiPietro's attorney; (2) the trial court did not abuse its discretion by dismissing the jury pool where a co-defendant was "moaning in pain[] in full view of jurors and potential jurors," where several defense attorneys aided him but prosecutors did not, and where one defense attorney "yelled to an FBI agent, in the presence of the jury, '[D]idn't they teach you CPR at the FBI Academy?'" (274 F. App'x at 55); (3) DiPietro's convictions on the two 18 U.S.C. § 924(c) counts were proper because the underlying offenses formed two distinct units of prosecution; (4) the trial court did not improperly prohibit DiPietro's counsel from objecting; (5) none of the appellants' challenges to the sufficiency of the evidence warranted a reversal; (6) the trial court did not abuse its discretion in admitting certain evidence against the various defendants, and (7) DiPietro and Pizzuti's remaining arguments were "without merit." United States v. Genua, supra, 274 F. App'x at 53-56.*fn3

C. Motions for New Trial and Section 2255 Motions

In 2008, DiPietro and Pizzuti filed motions for new trials under Federal Rule of Criminal Procedure 33, which are still pending (Docket Items 259, 262 in 02 Cr. 1237). In 2010, they filed the instant motions under 18 U.S.C. § 2255 to vacate, set aside, or correct their sentences.

DiPietro asserts the following claims in support of his Section 2255 petition: (1) new evidence has been discovered, including evidence the prosecution suppressed in violation of Brady v. Maryland, 373 U.S. 83, 87 (1963); (2) the prosecution adduced false testimony; (3) the prosecution misled the court; (4) resentencing of DiPietro is warranted on the 18 U.S.C. § 924(c) convictions (DiPietro's Memorandum of Law in Support of 28 U.S.C. § 2255 Motion to Vacate, Set Aside or Correct Sentence ("DiPietro Habeas Memo"), dated March 22, 2010 (Docket Item 1 at 10 Civ. 2585)). By letter dated February 4, 2011, to the under-signed, DiPietro consented to the complete incorporation of his new trial motion into his Section 2255 petition. DiPietro did not assert any claims in his motion for a new trial that are independent from his Section 2255 petition, but he did identify other evidence that he claims is either newly discovered or was not turned over by the government prior to trial.

Pizzuti joins in the arguments of petitioners DiPietro and Genua and asserts the following independent claims in support of his Section 2255 petition: (1) his counsel was ineffective in violation of the Sixth Amendment; (2) the district court altered a defective jury charge over the affirmation of the stenographer who transcribed the court proceedings, violating Pizzuti's due process rights; (3) Pizzuti's due process rights were violated by the pervasive unfairness of the trial, as evidenced by, inter alia, the denial of 22 defense motions, the court's refusal to allow defense counsel to call Perazzo to the stand and the filing of a superseding indictment on the eve of trial (Pizzuti's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, dated January 5, 2010 ("Pizzuti Habeas Memo") (Docket Item 1 in 10 Civ. 0199); Pizzuti Supplemental Habeas Memo).

On May 20, 2010, the Honorable Richard J. Holwell, United States District Judge, consolidated the Section 2255 motions of DiPietro, Genua and Pizzuti and referred the motion and the related motions in the criminal case, United States v. DiPietro, et al., 02 Cr. 1237, to me.

D. The Present Motions

Petitioners' motions to compel discovery arise in connection with their Section 2255 claims. Petitioner DiPietro requests the following discovery:

(1) All reports of investigation and rough notes of the Federal Bureau of Investigation ("FBI") or prosecutors' contacts or meetings --- including those of New York State Police ("NYSP") or Westchester County (N.Y.) officers and prosecutors --- regarding Wieland, Taddeo, Nicaj, Bashkim Mustafaj, Macchiarulo, Pereira and Ralph Pizzuti. This request seeks, among other things, the substance of any statements given to law enforcement or prosecutors that were not memorialized in writing.

(2) All still-existing reports and rough notes, and the substance of any statements given to law enforcement or prosecutors --- including those in Westchester County --- regarding Perazzo. Petitioners also seek all evidence pertaining to the receipt, viewing, retention and destruction of video surveil-lance tapes of Perazzo's home.

(3) All information, including but not limited to testimony, reports and notes, pertaining to cooperating witness Sanginiti's cooperation with the WCDAO in the prosecution of Roberto DeRosario. Petitioners also seek all FBI Form 302s, including drafts and notes of each individual interview with Sanginiti. Petitioners additionally seek all phone records of telephone number 914-420-9773, subscribed in the name of Sanginiti's wife, during the period of the Perazzo kidnapping from June to July 2001.

(4) All information provided by the prosecution to cooperating witness Celaj, his attorney, the Department of Homeland Security or any other federal agency that was provided for purposes of preventing Celaj's deportation. Petitioners also seek recordings of Celaj's telephone calls from the Metropolitan Correctional Center ("MCC") in Manhattan and Metropolitan Detention Center ("MDC") in Brooklyn during the time of his cooperation. Petitioners additionally seek all notes of Celaj's proffer sessions in Westchester, and all documents and evidence reflecting contact between Celaj and Perazzo's girlfriend, Kaffee Ann Forde, during the time of Celaj's cooperation, including records of commissary payments made by Forde for the benefit of Celaj.

(5) All other Brady/Giglio evidence in possession of the prosecution team, which includes the WCDAO or the NYSP (DiPietro's Memorandum of Law in Support of Discovery, dated October 4, 2010 ("DiPietro Discovery Memo") (Docket Item 19 in 10 Civ. 199) at 6-14).*fn4

DiPietro also requests an evidentiary hearing, although he does not specify what factual issues he seeks to have resolved at such a hearing (Affirmation of Counsel, attached to DiPietro Habeas Memo).

In addition to the discovery DiPietro seeks, Pizzuti requests the following discovery:

(1) The original wiretap application for Pizzuti's telephone number, 914-490-1007, prepared by the WCDAO in connection with the investigation of Perazzo.

(2) All notes, memoranda or other documents or records detailing the release of Celaj and Sanginiti from the MCC or MDC from April-July 2005, including the time and place of their release, and by and with whom they were transported.

(3) Grand jury testimony, notes, memoranda and documentation relating to Perazzo and any interviews of Perazzo.

(4) All notes, memoranda or other documentation of any plea agreement proposal offered to Pizzuti.

(5) All records and memoranda of the United States Probation Department documenting Pereira's whereabouts from April 26, 2005, to July 12, 2005 --- and if there are no records, a statement to that effect.

(6) The files of a private investigation firm, Innovative Strategists, Inc., hired by his former attorneys (Pizzuti's Motion for Discovery, dated September 13, 2010 ("Pizzuti Discovery Memo") (Docket Item 330 in 02 Cr. 1237) at 3-6; Pizzuti's Supplemental Discovery Request, dated September 24, 2010 ("Pizzuti Supplemental Discovery Memo") (Docket Item 334 in 02 Cr. 1237), at 1-3).

Pizzuti also requests an evidentiary hearing, although he does not specify what factual issues he seeks to have resolved at the hearing. In fact, Pizzuti contends that "discovery is necessary to further develop Petitioner's claims, and to limn [sic] the need for an evidentiary hearing" (Pizzuti Discovery Memo at 2).

III. Analysis

A. Legal Standard for Discovery for Habeas Petitioners

"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, supra, 520 U.S. at 904; Harris v. Nelson, supra, 394 U.S. at 295; accord Charles v. Artuz, 21 F. Supp. 2d 168, 169 (E.D.N.Y. 1998). The Second Circuit has noted that "Rule 6(a) of the Rules Governing Section 2255 Proceedings . . . provides that a § 2255 petitioner is entitled to undertake discovery only when 'the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.'" Lewal v. United States, 152 F.3d 919, 1998 WL 425877 at *2 (2d Cir. 1998) (unpublished).

A petitioner "bears a heavy burden in establishing a right to discovery." Renis v. Thomas, No. 02 Civ. 9256 (DAB)(RLE), 2003 WL 22358799, at *2 (S.D.N.Y. Oct. 16, 2003) (citing Bracy, 520 U.S. at 904). In order to show "good cause," a petitioner must present "'specific allegations"' that give the Court "'reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief."' Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). A court may deny a petitioner's request for discovery "where the petitioner provides no specific evidence that the requested discovery would support his habeas corpus petition." Hirschfeld v. Comm'r of the Div. of Parole, 215 F.R.D. 464, 465 (S.D.N.Y. 2003); see also Charles v. Artuz, 21 F. Supp. 2d 168, 170 (E.D.N.Y. 1998). Generalized statements regarding the possibility of the existence of discoverable material will not be sufficient to establish the requisite "good cause." See Gonzalez v. Bennett, No. 00 Civ. 8401(VM), 2001 WL 1537553, at *4 (S.D.N.Y. Nov. 30, 2001); Green v. Artuz, 990 F. Supp. 267, 271 (S.D.N.Y. 1998); Munoz v. Keane, 777 F. Supp. 282, 287 (S.D.N.Y. 1991), aff'd sub nom., Linares v. Senkowski, 964 F.2d 1295 (2d Cir.1992).

Ruine v. Walsh, 00 Civ. 3798 (RWS), 2005 WL 1668855 at *6 (S.D.N.Y. July 14, 2005) (Sweet, D.J.).

Furthermore, "Rule 6 does not license a petitioner to engage in a 'fishing expedition' by seeking documents 'merely to determine whether the requested items contain any grounds that might support his petition, and not because the documents actually advance his claims of error.'" Ruine v. Walsh, supra, 2005 WL 1668855 at *6, quoting Charles v. Artuz, 21 F. Supp. 2d 168, 169 (E.D.N.Y. 1998).

A habeas petitioner seeking an evidentiary hearing must also meet a demanding standard.

A petition for habeas corpus requires a hearing to resolve disputed issues of fact unless the record shows that the petitioner is not entitled to relief. 28 U.S.C. § 2255. We have consistently held that the standard to be used in making this determination is whether, "if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief. Mere generalities or hearsay statements will not normally entitle the applicant to a hearing, since such hearsay would be inadmissible at the hearing itself. The petitioner must set forth specific facts which he is in a position to establish by competent evidence." Dalli v. United States, 491 F.2d 758, 760-61 (2d Cir. 1974) (citations omitted).

See also United States v. Franzese, 525 F.2d 27, 31 (2d Cir. 1975), cert. denied, 424 U.S. 921, 96 S.Ct. 1128, 47 L.Ed.2d 328 (1976); D'Ercole v. United States, 361 F.2d 211, 212 (2d Cir.) (per curiam), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966).

Hayden v. United States, 814 F.2d 888, 892 (2d Cir. 1987); accord LoCascio v. United States, 395 F.3d 51, 57 (2d Cir. 2005). A court "enjoys 'broad discretion to hear further evidence in habeas cases.'" Beatty v. Greiner, 50 F. App'x 494, 497 (2d Cir. 2002), quoting Nieblas v. Smith, 204 F.3d 29, 31 (2d Cir. 1999).

B. Standards for Attacking Conviction Due to Brady Violation

The standards applicable to a collateral attack on a conviction based on a putative Brady violation were succinctly set forth by the Honorable Lewis A. Kaplan, United States District Judge, in Lamberti v. United States, 22 F. Supp. 2d 60, 66-67 (S.D.N.Y. 1998), aff'd without published opinion sub nom., Badalamenti v. United States, 201 F.3d 430 (2d Cir. 1999):

In order to establish a Brady v. Maryland violation, the defendant must show that (1) the government suppressed favorable evidence, and (2) the evidence the government suppressed was material. A defendant cannot satisfy the suppression requirement if the defendant, directly or through counsel, "either knew, or should have known, of the essential facts permitting him to take advantage of [that] evidence." As for the materiality requirement, "favorable evidence is material, and constitutional error results from its suppression by the government, if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." "A 'reasonable probability' is 'a probability sufficient to undermine confidence in the outcome' of the case." (footnotes and citations omitted). See also Banks v. Dretke, 540 U.S. 668, 691 (2004); Strickler v. Greene, 527 U.S. 263, 281-82 (1999); Tankleff v. Senkowski, 135 F.3d 235, 250-51 (2d Cir. 1998); Leake v. Senkowski, 01 Civ. 7559 (SHS)(GWG), 2004 WL 1464889 at *19 (S.D.N.Y. June 30, 2004) (Gorenstein, M.J.) (Report & Recommendation).

In United States v. Bagley, 473 U.S. 667, 682 (1985), the United States Supreme Court established a universal definition of materiality for Brady purposes to be applied whether or not defense counsel requested the material in issue in discovery: "[E]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." 473 U.S. at 682; see also Kyles v. Whitley, 514 U.S. 419, 433-34 (1995).

While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government with a degree of discretion, it must also be understood as imposing a corresponding burden. On the one side, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be assigned the consequent responsibility to gauge the likely net effect of all such evidence and make disclosure when the point of "reasonable probability" is reached.

Kyles v. Whitley, supra, 514 U.S. at 437.

Similarly, under Giglio v. United States, 405 U.S. 150, 154 (1972), where reliability of a witness could determine guilt or innocence, "nondisclosure of evidence affecting credibility falls within" the general Brady rule "that suppression of material evidence justifies a new ...


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