Basciano v. United States
| Decision Date | 17 December 2014 |
| Docket Number | 12-CV-280 (NGG) |
| Parties | VINCENT JOHN BASCIANO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Petitioner Vincent Basciano ("Petitioner" or "Basciano") brings a pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2255.1 (Pet. (Dkt. 1).) For the following reasons, Basciano's Petition is DENIED.
The court assumes familiarity with the underlying facts of this case and discusses the facts relevant to Petitioner's claims as needed below.
On November 19, 2004, Basciano was arrested pursuant to an indictment charging him with racketeering conspiracy in connection with his role as a member of the Bonanno crime family of La Cosa Nostra ("Bonanno family"). (Superseding Indictment 1 ("S-1") (Trial Dkt. 165).)2 On January 11, 2006, the grand jury returned Superseding Indictment S-5, on whichPetitioner was later tried. (Superseding Indictment 5 ("S-5") (Trial Dkt. 445).) On May 9, 2006, Basciano was convicted of racketeering conspiracy following a jury trial. (See Verdict Sheet (Trial Dkt. 749).) The jury found that the following predicate racketeering acts were proved by the Government: illegal gambling (policy operation), illegal gambling (joker poker machines), conspiracy to murder David Nunez, and the attempted murder of Nunez. Id. However, the jury found certain other racketeering acts not proved and failed to reach a verdict on the remaining acts, including the murder of Frank Santoro. See id.
On September 22, 2006, Basciano filed a motion for acquittal under Federal Rule of Criminal Procedure 29 or a new trial under Federal Rule of Criminal Procedure 33, which the court denied. See United States v. Basciano, No. 03-CR-929 (NGG), 2006 WL 3780542 (E.D.N.Y. Dec. 21, 2006). Basciano also filed a motion to recuse the court and Assistant U.S. Attorney Greg Andres, which the court also denied. See United States v. Basciano, Nos. 03-CR-929 (NGG), 05-CR-060 (NGG), 2006 WL 3483924 (E.D.N.Y. Nov. 30, 2006) (); United States v. Basciano, Nos. 03-CR-929 (NGG), 05-CR-060 (NGG), 2006 WL 3486774 (E.D.N.Y. Dec. 1, 2006) ().
On June 14, 2007, Petitioner was charged, in Superseding Indictment S-8, with crimes as to which the first jury could not reach a verdict, as well as substantive racketeering and other offenses. (Superseding Indictment 8 ("S-8") (Trial Dkt. 840).) On July 31, 2007, the jury returned a verdict, finding Petitioner guilty on all counts. (See Verdict Sheet (Trial Dkt. 981).)The jury found that the following predicate racketeering acts were proved by the Government: conspiracy to murder and the murder of Frank Santoro, solicitation to murder Dominick Martino, solicitation to murder Salvatore Vitale, conspiracy to distribute marijuana, illegal gambling (lottery), and illegal gambling (sports betting). See id.
On March 24, 2008, Petitioner filed a second motion for a new trial under Rule 33, which the court denied. United States v. Basciano, No. 03-CR-929 (NGG), 2008 WL 794945 (E.D.N. Y. Mar. 24, 2008). On March 31, 2008, Petitioner filed a motion for reconsideration, which the court also denied. United States v. Basciano, No. 03-CR-929 (NGG), 2008 WL 905867 (E.D.N.Y. Mar. 31, 2008). Thereafter, Petitioner was sentenced to life imprisonment, five years of supervised release, and forfeiture in the amount of $5,400,000. (See Am. J. (Trial Dkt. 1077).)
On July 16, 2010, Petitioner filed a direct appeal to the Second Circuit, challenging the convictions obtained in both his 2006 and 2007 trials. See United States v. Basciano, 384 F. App'x 28 (2d Cir. 2010). Petitioner argued that he was denied a fair trial for the following reasons:
(1) the prosecution withheld Brady/Giglio material, (2) the prosecution impermissibly bolstered the credibility of its witnesses and failed to correct false testimony, (3) the district judge failed to recuse himself after learning that [Petitioner] had included his name on a purported 'hit list,' [] (4) the trial evidence and jury charge constructively amended or varied the superseding indictment on which [Petitioner] was tried in 2007 . . . [and] (5) that a conflict of interest precluded his defense counsel from rendering effective representation.
Id. at 30. The Second Circuit affirmed Petitioner's conviction by summary order, finding that Petitioner's arguments were without merit.3 See id. Basciano then petitioned the United States Supreme Court for a writ of certiorari, which the Court denied on January 18, 2011. See Basciano v. United States, 131 S. Ct. 1025 (Jan. 18, 2011).
On January 26, 2005, Petitioner was charged, under docket number 05-CR-060, with conspiracy to murder and murder in aid of racketeering of Randolph "Randy" Pizzolo, as well as a related firearms offense.4 (Indictment (Capital Trial Dkt. 1).) Petitioner again filed a motion to recuse the court, which the court denied. See United States v. Basciano, No. 05-CR-060 (NGG), 2010 WL 4484366 (E.D.N.Y. Nov. 1, 2010). The court also denied Petitioner's pre-trial motion to disqualify the entire United States Attorney's Office for the Eastern District of New York. See United States v. Basciano, 763 F. Supp. 2d 303, 314 (E.D.N.Y. 2011). The indictment was frequently superseded, and Petitioner was ultimately tried on Superseding Indictment S-12 in a capital trial in 2011. (Superseding Indictment 12 ("S-12") (Capital Trial Dkt. 1075).) On May 16, 2011, the jury found Petitioner guilty of conspiracy to murder, murder in aid of racketeering, and using, carrying, or possessing a firearm in relation to the Pizzolo murder. (Verdict Sheet (Capital Trial Dkt. 1232).) During the penalty phase of the capital trial, the jury did not impose a death sentence and instead imposed life imprisonment without the possibility of release. (SpecialVerdict Sheet (Capital Trial Dkt. 1268).) Petitioner is currently appealing his capital trial conviction. (Not. of Appeal (Capital Trial Dkt. 1308).)
On January 17, 2012, Petitioner filed the instant Petition, by which he seeks to vacate the 2006 and 2007 convictions. (Pet.) The Petition alleges eleven grounds of error, which the court groups into the following categories: (1) violations of Brady v. Maryland, 373 U.S. 83 (1963), and its progeny (id. at 34-46) (Ground Three); (2) ineffective assistance of trial and appellate counsel (id. at 5-24, 26-32, 78-82, 83-84) (Grounds One, Two, Nine, and Ten); (3) improper admission of uncharged acts (id. at 69-71, 72-74, 75-77) (Grounds Six, Seven, and Eight); and (4) prosecutorial misconduct and bias (id. at 49-53, 55-68, 85-94) (Grounds Four, Five, and Eleven). Petitioner also filed numerous recusal and discovery-related motions, which the court addressed in the accompanying Recusal and Discovery Order. (Dec. 15, 2014, Order ("Recusal and Discovery Order") (Dkt 39).)
On July 18, 2013, the Government filed an opposition brief in response to Basciano's Petition. (See Gov't Opp'n (Dkt. 20).) Petitioner did not file a reply by his deadline. Instead, on November 27, 2013, before the court could rule on his pending Motion to Amend, Petitioner filed an Amended Petition, which added new claims that were not part of his original Petition. (See Am. Pet. (Dkt. 38).) The court granted Petitioner's Motion to Amend in part and denied it in part, largely striking the new claims as futile. (See Recusal and Discovery Order at 48-53.) However, in light of Petitioner's pro se status, insofar as Petitioner elaborates his original claims and responds narrowly to arguments raised in the Government's opposition brief, the court reads the Amended Petition together with his opening filing as a reply memorandum. (Id. at 50.)
Section 2255, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), permits a prisoner who was sentenced in federal court to "move the court which imposed the sentence to vacate, set aside, or correct the sentence" when he claims "the right to be released upon the ground that the sentence was imposed," among other reasons, "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). "[B]ecause requests for habeas corpus relief are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult to upset a conviction by collateral, as opposed to direct, attack." Ciak v. United States, 59 F.3d 296, 301 (2d Cir. 1995) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). Therefore, a habeas petitioner must show "both a violation of [his] Constitutional rights and 'substantial prejudice' or a 'fundamental miscarriage of justice.'" Ciafarano v. United States, 585 F. Supp. 2d 360, 368 (E.D.N.Y. 2008) (quoting Ciak, 59 F.3d at 301).5
Furthermore, in the case of a collateral challenge, two separate rules may preclude claims from being relitigated. See Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). The first of these is the so-called mandate rule, which "bars re-litigation of issues already decided on direct appeal." Id. (citing Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006); United States v. Minicone, 994 F.2d 86, 89 (2d Cir. 1993)). The mandate rule precludes relitigation of issues either expressly or impliedly resolved by the mandate of the appellate court. See id. (citing United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001)); see also Basciano, 465 F. App'x at 13.
The second rule "prevents claims that could have been brought on direct appeal from being raised on collateral review, absent cause and prejudice."6 Yick Man Mui, 614 F.3d at 54; see also United States v. Thorn, 659 F.3d 227, 231 (2d Cir. 2011); United States...
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