United States District Court, E.D. New York
RAYMOND J. DEARIE UNITED STATES DISTRICT JUDGE.
Philip Barry moves under Rule 60(b)(3), and in the
alternative under Rule 60 (d)(3), of the Federal Rules of
Civil Procedure for relief from the judgment entered pursuant
to this Court's Memorandum and Order dated June 17, 2015.
The decision, which denied Barry's application for habeas
relief under 28 U.S.C. § 2255, is reported
electronically at Barry v. United States. 2015 WL
3795866 (E.D.N.Y.June 17, 2015), and fully incorporated here.
As the parties are aware, the Court held that the Second
Circuit's determination that there was overwhelming
evidence of Barry's guilt foreclosed any showing of
Strickland prejudice with respect to the 17
trial-based branches of Barry's ineffective assistance of
counsel claim. Barry, 2015 WL 3795866 at *3-5.
Alternatively, the Court concluded, with respect to the all
branches of the claim, that Barry failed to show that counsel
performed deficiently within the meaning of
Strickland. Id. at*3-13.
seeking relief from those rulings now, Barry claims that the
government committed fraud upon this Court within the meaning
of Rule 60 in its § 2255 opposition brief by inexactly
summarizing the arguments in Barry's brief, the trial
record, and pre-trial proceedings. Barry also claims that the
alleged briefing misrepresentations are part of a pattern of
fraudulent prosecutorial conduct spanning the entirety of
this and other criminal proceedings.
Barry argues that certain of the Court's remarks in the
decision denying habeas relief reflect a lack of impartiality
reasons set forth below, these motions are denied.
RULE 60 MOTION
emphasizes in his reply papers that his application is not
"a generic motion for reconsideration, " Barry
Reply, ECF Doc. 17 at 1; instead, Barry asserts that
"relief from judgment" is required under Rule 60
because, in the language of subparagraph (b)(3) of that rule,
there occurred "fraud..., misrepresentation, or
misconduct by the opposing party" or! in the language of
subparagraph (d)(3), there occurred "fraud on the
court" or the equivalent.
under Rule 60 on the ground of fraud is extraordinarily rare.
The type of fraud the rule contemplates is "only that
species of fraud which does or attempts to[ ] defile the
court itself, or is a fraud perpetrated by officers of the
court so that the judicial machinery cannot perform in the
usual manner its impartial task of adjudging cases."
Pena v. United States. 859 F.Supp.2d 693, 699
(S.D.N.Y. 2012) (internal quotation and citation omitted).
The party alleging fraud must substantiate the allegations by
"clear and convincing evidence of material
misrepresentations, " Fleming v. New York
University. 865 F.2d 478, 484 (2d Cir. 1989), and show
that the fraud "seriously affect[ed] the integrity of
the normal process of adjudication." Pena, 859
F.Supp.2d at 699 (internal quotation and citation omitted).
Accord Rowe Entertainment v. William Morris Agency
Inc., 2012 WL 5464611, at *15 (S.D.N.Y. Nov. 8, 2012)
(movant alleging Rule 60 fraud must show that the
"[c]ourt's decision was influenced by the conduct at
issue") (internal quotation and citation omitted).
Finally, a Rule 60(b) motion "cannot serve as an attempt
to relitigate the merits." Fleming. 865 F.2d at
cannot prevail because, as discussed below, he has simply not
shown that the government committed fraud.
alleges a total of 41 distinct occurrences or
"grounds" for relief and has grouped them into six
Grounds 1 through 7
points to seven passages in the government's brief in
opposition to his 2255 motion that, he insists, so
inaccurately paraphrase some aspect of his brief
that they amount to a fraud on the Court requiring relief
from the judgment entered against him.
that Barry has also moved for the Court's recusal on the
theory that the language and tone of its past decision
suggest bias, the Court nevertheless cannot mince words here:
as a threshold matter, the government simply could not have
defrauded the Court as Barry suggests unless the Court had
consulted only the government's brief to learn
the content of Barry's claims-which is simply
not how this Court operates. A party does not commit fraud
upon this Court merely by summarizing, characterizing, and
paraphrasing an adversary's argument-with I all the risk
of imperfection with which those activities are fraught-when
the original materials are a matter of public record and
before the Court.
the few discrepancies between Barry's 2255 brief and the
government's account of it that Barry has unearthed are
semantic or miniscule, and in any event immaterial to the
ultimate disposition of Barry's habeas application.
representative example, ground 5, is recounted here in full
to illustrate Barry's plodding, exacting methodology and
its stark disproportion to the trifling nature of the claim
it purports to advance.
begins his "ground 5" discussion by referencing a
specific branch of the ineffectiveness claim raised in his
Section 2255 papers: he writes that he had "cited
counsel for allowing false testimony that [Barry] had written
1, 623 bounced checks [to go] unchallenged." Rule 60
Mot., ECF Doc. 11 at 8. He then reproduces a passage from the
government Section 2255 opposition brief to show, in his
words, "what the government said [his 2255 brief]
argued." Id. The allegedly offending passage
states as follows: "Barry now argues that counsel should
have objected to this testimony because it is suggested that
an insufficient funds fee means that a check
next reproduces a passage from the brief he submitted in
support of his Section 2255 application to show "what
[his 2255 brief] actually said" counsel should
have done. Rule 60 Mot., ECF Doc 11 at 8. The passage states
as follows: "A few simple questions on cross would have
easily exposed the error."
Barry asserts that a close comparison of the two reproduced
passages yields evidence of governmental fraud:
Note [in Barry's 2255 Brief] the complete absence of the
words "object" or "objection." Counsel
was faulted for not utilizing cross examination to ! expose
the falsity of the 1, 623 bounced checks testimony. Rationale
[sic] for the government's purposeful misrepresentation
is readily apparent. If the Petition had actually proposed
that counsel should have objected on the grounds that the
testimony was false, that would have been a request for a j
futile absurdity. One cannot object that testimony is false.
It must be shown to be false by other evidentiary means, or
exposed as such during cross-examination-the precise tactic
the Petition called for counsel to have employed.
Rule 60 Mot., ECF Doc. 11, at 8.
places great weight on a distinction without a material
difference: the thrust of his Section 2255 complaint about
the bounced-checks testimony, as reflected in the applicable
point heading of his Section 2255 brief, was that counsel
failed to challenge it. See Barry's 2255 Br. at
33, Point 11. Counsel permitted false testimony when proof of
the falsity thereof was in discovery material and despite
being made aware of it").
accepting, however, the procedural and substantive
differences between a formal objection (which goes to
admissibility) and cross-examination (which goes to accuracy,
probity, and weight), no error or injustice relating to those
differences occurred in Barry's 2255 proceeding as a
result of the government's treatment of the issue. In the
decision denying habeas relief, this Court concluded that
"counsel's decision not to call further attention to
the incriminating facts [established by the bounced-checks
evidence] is sound strategy by any measure" and
therefore not deficient under Strickland's first
prong. Barry. 2015 WL 3795866 at *9. Notably, the
Court's analysis accounted for both objection
and cross-examination as available vehicles. See id
(Court framed issue as whether "counsel either
should have objected to [the government analyst's]
testimony or used ... discovery materials to
establish, through cross-examination, that certain of
the checks alleged to have bounced were in fact paid")
(emphasis added). Moreover, as already noted, this ruling was
an alternative to the Court's dispositive ruling
that whether or not counsel's performance was deficient,
Barry could not show Strickland prejudice.
Id. at 3-5.
other grounds in this category fail to establish a basis for
Rule 60 relief for the same reasons: none makes even the
remotest showing of Rule 60 fraud. See Pena, 859
F.Supp.2d at 699; Fleming, 865 F.2d at 484. Further,
any discrepancies between the government's! summary and
the original material are either wholly semantic or otherwise
trivial and in any event not material to the Court's
§ 2255 rulings. Although the assertions of fraud are so
strained that summary rejection would be the appropriate
judicial response, the Court briefly addresses each
ground 1, Barry complains that the government
"purposefully distorted the wording" of his brief
when it stated that "[c]ontrary to Barry's claim,
the liquidity (or lack thereof) of Barry's underlying
investments was not a primary focus of the case against him,
" whereas Barry's brief stated that "[a]nother
component of the government's allegations was that of
misrepresentation of liquidity of investment" but did
not use the words "focus" or "primary
focus." Rule 60 Mot., ECF Doc. 11, at 9. The
government's use of the words "primary focus"
is not a material misrepresentation of Barry's position;
his § 2255 brief plainly treats the! liquidity issue as
substantial. See Barry's 2255 Br. at 8-9.
ground 2, Barry asserts that the government "opted to
tell the Court that [Barry's brief] said the exact
opposite of what it actually said, when the government wrote
that "Barry is wrong when he claims that the length of
his counsel's closing argument is proof of ineffective
assistance, " whereas Barry's brief had asserted
that, "[a]lthough the brevity of a summation is not in
itself determinative of insufficiency, here the closing
argument was lacking in many crucial elements." Rule 60
Mot., ECF Doc. 11, at 9-10. The assertion of fraud is
frivolous. In any event, the Court reviewed the
summation's contents and length, applied the principle
that "[d]ecisions as to the content of a closing
argument are quintessential strategic and tactical, "
and concluded that, "in this case the summation
reflected a sound strategy that satisfies the objective
standard of reasonableness." Barry, 2015 WL
3795866 at *10.
ground 3, Barry asserts that the government committed fraud
when its 2255 opposition brief asserted that Barry had failed
to cite authority for the proposition that the
"'tactical' decision not to call defense
witnesses stops being tactical when the list of potential
witnesses is extensive." Rule 60 Mot., ECF Doc. 11, at
11. The government did not commit fraud: Barry's 2255
brief complained of counsel's failure to call any defense
witnesses, and noted that the list of potential witnesses was
"extensive." Barry's 2255 Br. at 12. In any
event, in finding neither prejudice nor deficient performance
under Strickland, the Court gave plenary
consideration to each of the categories of witnesses Barry
would have had counsel call. Barry, 2015 WL 3795866
ground 4, Barry asserts that, when responding to his habeas
claim that counsel was ineffective by stipulating to the
admission of excerpts of audio tapes of creditor meetings
from Barry's bankruptcy case without seeking to introduce
other portions under the rule of completeness, the government
committed fraud by falsely telling the Court that Barry asked
for a "blanket opportunity to offer his own prior
statements." Rule 60 Mot., ECF Doc 11, at 12. The
government did not commit fraud, but fairly responded to
Barry's claim by arguing that, under Second Circuit law,
"the rule of completeness... does not provide a
defendant with a blanket opportunity to offer his own prior
statements just because the government has introduced the
defendant's inculpatory statement" but instead
requires a defendant to make one of the showings the
completeness rule requires. Gov't 2255 Br. at 30.
ground 6, Barry asserts that the government committed fraud
by asserting in its brief that Barry cited only three
specific instances in which counsel was ineffective, whereas
he claims he cited a total of seven. Rule 60 Mot., ECF Doc 11
at 15. There was no fraud: as noted, the ...