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Batista v. United States

United States District Court, E.D. New York

August 25, 2017

LUIS M. BATISTA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          DORA L. IRIZARRY, CHIEF JUDGE

         On February 10, 2014, Petitioner filed a motion, pro se, [1] pursuant to 28 U.S.C. § 2255, challenging his October 2009 convictions for conspiracy to distribute a controlled substance, obstruction of justice, and bank fraud, on the grounds that he received ineffective assistance of counsel. (See generally Petition, Dkt. Entry No. 1.) After Plaintiff challenged the affidavits submitted by his trial counsel and requested additional discovery (See Mot. to Strike, Dkt. Entry No. 13; Mot. for Discovery, Dkt. Entry No. 23), on August 31, 2016, this Court denied Petitioner's motion to strike his former attorneys' declarations, but permitted him limited discovery regarding his trial counsel's plea negotiations with the government. See Batista v. United States, 2016 WL 4575784 (E.D.N.Y. Aug. 31, 2016) (“August 31 Order”). Specifically, the Court ordered his two trial lawyers and a representative from the government's trial team to file affidavits “describing any plea offers made by the government, including the dates on which any offers were extended and expired.” Id. at *2.

         Since the August 31 Order, Plaintiff has made three separate applications that currently are before the Court (the “Motions”). First, on September 14, 2016, Petitioner moved to reconsider the August 31 Order, on the ground that the Court failed to consider the argument raised in the reply brief of his motion to strike the declaration of his former counsel, Anthony Ricco, i.e., that the declaration did not contain a valid signature. (Motion for Reconsideration, Dkt. Entry No. 47.) Second, after the affidavits contemplated in the August 31 Order were filed (See Dkt. Entry Nos. 48, 49, 50), Petitioner moved to strike any portion of the affidavits “(1) that goes beyond the scope of the discovery sought by Petitioner and the Court's Order, itself, and (2) where the declarations made are questionable” (Letter from B. Kleinman, Dkt. Entry No. 51 (“Motion to Strike”)). Third, on October 28, 2016, Petitioner filed a motion seeking leave to amend the Petition, or otherwise move pursuant to 18 U.S.C. § 3582(c)(2), on the basis he should be resentenced following Amendment 794 to the United States Sentencing Guidelines (“U.S.S.G.”), which made changes to the commentary regarding the mitigating role reduction set forth in U.S.S.G. § 3B1.2(a). (Motion to Amend § 2255 Petition, Dkt. Entry No. 52 (“Motion for Leave”).)

         For the reasons set forth below, the Motions are denied.

         DISCUSSION

         I. Motion for Reconsideration

         In the Motion for Reconsideration, Petitioner principally contends that the Court failed to consider an additional argument in support of his motion that was set forth for the first time in his reply brief. (See Reply in Further Support of Motion to Strike, Dkt. Entry No. 21 (“Reply IFSO Mot. to Strike”).) In his original motion to strike, Petitioner argued that the affidavits from both Mr. Ricco and Mr. Moschella did not conform to the requirements of 28 U.S.C. § 1746, and that Mr. Ricco's declaration exceeded the scope of Petitioner's waiver of the attorney-client privilege. (See Mot. to Strike.) In his reply brief, Petitioner reiterated these arguments, but also noted for the first time that “a more careful examination of Ricco's declaration reveals that the document is devoid of a proper signature” because it “employs a computer generated image of [Mr. Ricco's] name using a cursive font.” (Reply IFSO Mot. to Strike at 3.) In the Motion for Reconsideration, Petitioner argues that this Court failed to address this argument. (See generally Mot. for Reconsideration.)

         As an initial matter, the Court is entitled to disregard any legal argument raised for the first time on reply, particularly since the government had no opportunity to oppose it. See In re Harris, 464 F.3d 263, 268 n.3 (2d Cir. 2006); Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110, 112 (2d Cir. 1999) (per curiam). Importantly, in the time since Petitioner filed his Motion for Reconsideration, the Second Circuit Court of Appeals has rejected his arguments as to this issue, noting:

. . . Petitioner has not demonstrated ‘a clear and indisputable' abuse of discretion on the part of the district court because the issues that were not explicably addressed in the August 2016 order were first raised in a reply, Petitioner does not demonstrate that he was clearly entitled to prevail on those issues, and, in any event, mandamus relief is not warranted for the type of error alleged by Petitioner. See In re Steinhardt Partners, L.P., 9 F.3d 230, 233 (2d Cir. 1993) (stating that a mandamus petitioner “must demonstrate a clear and indisputable right to the issuance of the writ, amounting to a clear abuse of discretion or a usurpation of judicial power”); Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005) (holding that the district court had discretion to consider an issue first raised in reply papers); Keefe ex rel. Keefe v. Shalala, 71 F.3d 1060, 1066 n.2 (2d Cir. 1995) (“Normally, we will not consider arguments raised for the first time in a reply brief.”); United States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972) (“[M]ere error, even gross error in a particular case, as distinguished from a calculated and repeated disregard of governing rules, does not suffice to support issuance of the writ.”).

         Mandate, In Re: Luis Batista, No. 16-2876 (2d Cir. Dec. 2, 2016), ECF No. 25. Therefore, the Court need not even address this issue. Nonetheless, the Court will proceed to explain why it finds no merit in Petitioner's argument concerning Mr. Ricco's electronic signature.

         In addition to the requirements squarely discussed in the August 31 Order, 28 U.S.C. § 1746 also requires an actual signature from the declarant. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999) (setting forth requirements of § 1746); Dilworth v. Goldberg, 2014 WL 3798631, at *1 (S.D.N.Y. Aug. 1, 2014) (requiring a signature on a verified statement to satisfy § 1746). Under the local rules of this district, an electronic signature of an attorney is considered authentic if filed using the attorney's Electronic Case Filing (“ECF”) credentials. See E.D.N.Y./S.D.N.Y. Local Civ. R. 5.2(a), available at https://img.nyed.uscourts.gov/files/localrules/localrules.pdf (“A paper served and filed by electronic means in accordance with [the Court's ECF] instructions is, for purposes of Fed.R.Civ.P. 5, served and filed in compliance with the Local Civil Rules of the Southern and Eastern Districts of New York.”); E.D.N.Y. cm/ECF User's Guide at 3, 4, available at https://img.nyed.uscourts.gov/files/forms/ecf-usermanual.pdf (“Your login and password are your electronic signature.”) (emphasis omitted).

         Here, although Mr. Ricco's initial declaration was not filed on the docket using his ECF credentials, other factors provide sufficient assurances of authenticity. First, Mr. Ricco submitted his affidavit as a .pdf attachment from his professional email address to this Court's case manager and courtroom deputy. (See Declaration of Anthony Ricco, Esq., Dkt. Entry No. 12 (“First Ricco Declaration”).) He sent his submission via email only after attempting to file it via ECF and encountering technical difficulties. Moreover, Mr. Ricco followed up his email submission by sending a courtesy copy to this Court's chambers along with a cover letter bearing the letterhead of Mr. Ricco's law firm. Given the declaration was sent via both Mr. Ricco's law firm's email account and a letter bearing his firm's letter head, the Court has no reason to doubt that the declaration was made by Mr. Ricco, and Petitioner has not offered one.

         Second, Ricco submitted a second declaration-this time through the ECF system using his username and password-that expressly references the First Ricco Declaration. (See Declaration of Anthony Ricco, Esq., at 4, Dkt. Entry No. 48 (“Second Ricco Declaration”) (“As stated in my declaration of June 29, 2014, Luis Batista was, in fact, informed of the benefits of accepting a guilty plea in this case and consequences of proceeding to trial by both James Moschella and myself.”).) This reference, which was contained in a declaration submitted through ECF thereby fully complying with the signature requirements of § 1746, implicitly confirms the authenticity of the First Ricco Declaration.

         Therefore, the Court is satisfied that the authenticity requirements of 28 U.S.C. § 1746 have been satisfied as to the First Ricco Declaration. As a ...


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