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Donato v. United States

United States District Court, E.D. New York

May 7, 2014

CARLO DONATO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

Carlo Donato, pro se U.S. Penitentiary at Allenwood White Deer, PA for Petitioner.

Allen Lee Bode, Esq., United States Attorneys Office, Eastern District of New York Central Islip, NY, for Respondent.

MEMORANDUM & ORDER

JOANNA SEYBERT, District Judge.

Carlo Donato ("Petitioner") petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.[1]

BACKGROUND

Petitioner was arrested on February 15, 1995, pursuant to a warrant, after a year-long joint investigation by the FBI, New York Police Department, and Nassau County Police Department. (See Pet. 152, Docket Entry 1; see also Respondent's Appellate Brief ("Resp't's App. Br."), available at 1996 WL 34422555 at 3.) This investigation regarded "a series of armed carjackings that had occurred in Nassau County during 1993 and 1994." (Resp't's App. Br. at 3.) At Petitioner's trial, "[t]he government presented 22 witnesses including the seven victims of the carjackings... three eyewitnesses, an informant, several law enforcement officials[, ] and automobile executives." (Resp't's App. Br. At 4.)

On May 29, 1996, at the conclusion of a jury trial, Petitioner was found guilty of: (1) one count of Conspiracy to Commit Carjacking, in violation of 18 U.S.C. § 371; (2) six counts of Carjacking, in violation of 18 U.S.C. § 2119; and (3) six counts of Use of a Firearm during the Commission of a Crime of Violence, in violation of 18 U.S.C. § 924(c). (See Resp't's App. Br. at 1.) Petitioner was sentenced to 119 years incarceration and three years of supervised release, fined in the amount of $175, 000, and ordered to pay restitution in the amount of $295, 807.25. (See Resp't's App. at 1.) Petitioner appealed the conviction to the Second Circuit Court of Appeals, which, on April 23, 1997, affirmed the judgment. See United States v. Donato, 112 F.3d 506 (2d Cir. 1997).

On March 28, 1998, Petitioner filed a Petition for a Writ of Habeas Corpus (the "1998 Petition") pursuant to 28 U.S.C. § 2255. (See Pet. at 3-4.) The Second Circuit denied Petitioner's ineffective assistance of counsel claims and remanded the case to the District Court for resentencing based on a possible sentence calculation error. Donato v. United States, 208 F.3d 202 (2d Cir. 2000).

After Petitioner's sentence was recalculated, [2] the Court resentenced Petitioner to 115 years incarceration, three years of supervised release, fined in the amount of $175, 000, and ordered to pay restitution in the amount of $295, 807.25. (See Am. J., No. 95-CR-0223, Docket Entry 106.) Petitioner again appealed the Court's resentence. The Second Circuit affirmed the District Court's judgment, but remanded the case solely for purposes of either amending the fine to fit within the Sentencing Guidelines range or imposing a fine above the Guidelines range with an explanation for the departure. See United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002). On July 6, 2005, the District Court vacated the fine originally imposed and denied Petitioner's application to reopen his entire sentence. (See Am. J., No. 95-CR-0223, Docket Entries 126, 131.) Petitioner appealed the judgment, which the Second Circuit affirmed. (See Mandate, No. 95-CR-0223, Docket Entry 132.)

On September 27, 2006, Petitioner filed the present Petition. Petitioner asserts the following grounds: (1) Petitioner was denied his due process rights and his right to effective assistance of counsel as to an interpreter; (2) Petitioner was denied his due process and effective assistance of counsel rights when he was resentenced while overly-medicated at his December 1, 2000 resentencing; and (3) the evidence was legally insufficient to convict him. (See Pet. at 11-18.) On February 11, 2010, the Court denied Petitioner's "overly-medicated" claim. (See Feb. 11, 2010 Memorandum & Order, Docket Entry 17.) On November 22, 2013, Petitioner filed a motion to amend, which added a claim of actual innocence. (See Am. Br. at 8, Docket Entry 22-1.) The Court granted that motion. (See March 10, 2014 Memorandum & Order, Docket Entry 24.)

DISCUSSION

The Court will first address the applicable legal standard before turning to the merits of the Petition.

I. Legal Standard

"The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law." Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 780, 178 L.Ed.2d 624 (2011).

A prisoner in custody under sentence of a [federal] court... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

If the court finds... that there has been such a denial or infringement of the constitutional rights of the prisoner... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

Id. at § 2255(b).

The United States Supreme Court has held that "to obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). "Habeas corpus, it is well known, is not a neutral proceeding in which the petitioner and the State stand on an equal footing. Rather, it is an asymmetrical enterprise in which a prisoner seeks to overturn a presumptively valid judgment.'" Skaftouros v. United States, 667 F.3d 144, 158 (2d Cir. 2011) (quoting Pinkney v. Keane, 920 F.2d 1090, 1094 (2d Cir. 1990)). Petitioner has the burden of proving his claims by a preponderance of the evidence. Id . (citing Parke v. Raley, 506 U.S. 20, 31, 113 S.Ct. 517, 524, 121 L.Ed.2d 391 (1992); Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941)).

"The Court's discretion to grant relief under section 2255 is to be exercised sparingly, for such applications are in tension with society's strong interest in the finality of criminal convictions." Castro v. United States, ___ F.Supp.2d ___, at *4 (E.D.N.Y. Jan. 29, 2014) (quoting Elize v. United States, No. 02-CV-1350, 2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008); citing Brecht v. Abrahamson, 507 U.S. 619, 633-34, 113 S.Ct. 1710, 1719, 123 L.Ed.2d 353 (1993) (internal quotation marks and citations omitted)).

The Supreme Court has held, additionally, that, as a general rule, "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 1693, 155 L.Ed.2d 714 (2003) (citing Frady, 456 U.S. at 167-68, 102 S.Ct. 1594; Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). The Supreme Court has held, however, that ineffective assistance of counsel claims may be "brought in the first instance in a ...


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