Stantini v. U.S.

• Decision Date: 12 June 2003
• Docket Number: No. 97 CV 6683(ILG).,No. 97 CV 3659(ILG).,97 CV 3659(ILG).,97 CV 6683(ILG).
• Citation: 268 F.Supp.2d 168
• Parties: Orazio STANTINI, Petitioner, v. UNITED STATES of America, Respondent. Robert Bisaccia, Petitioner, v. United States of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

268 F.Supp.2d 168

Orazio STANTINI, Petitioner, v. UNITED STATES of America, Respondent.

Robert Bisaccia, Petitioner, v. United States of America, Respondent.

No. 97 CV 3659(ILG).

No. 97 CV 6683(ILG).

United States District Court, E.D. New York.

June 12, 2003.

COPYRIGHT MATERIAL OMITTED

Orazio Stantini, New York City, pro se.

David I. Schoen, Montgomery, AL, for Orazio Stantini.

Robert Bisaccia, Trenton, NJ, pro se.

Anthony J. Iacullo, Iacullo & Martino, LLP, Montclair, NJ, David Schoen, Montgomery, AL, Alan Dexter Bowman, Newark, NJ, for Robert Bisaccia.

Emily Berger, Assistant U.S. Attorney, Brooklyn, NY, James Orenstein, U.S. Dept. of Justice, Washington, DC, for U.S.

MEMORANDUM AND ORDER

GLASSER, District Judge.

The petitioners have filed applications with this Court seeking Certificates of Appealability which would enable them to appeal this Court's Memorandum and Order reported in 2000 WL 10314. They have also filed motions pursuant to Fed. R.Civ.P. 59(e) and 60(b) addressed to that Memorandum and Order. The background of these proceedings has been set forth in varying degrees of detail and on various issues over a period of 8 years and reported in United States v. Bisaccia, 1995 WL 228397 (E.D.N.Y.1995), aff'd, United States v. Stantini 85 F.3d 9 (2d Cir.1996), cert, denied, Bisaccia v. United States, 519 U.S. 1000, 117 S.Ct. 498, 136 L.Ed.2d 390 (1996); Bisaccia v. United States, 1997 WL 803721 (E.D.N.Y.1997); Stantini v. United States, 986 F.Supp. 736 (E.D.N.Y. 1997), denied in part and remanded, Stantini v. United States, 140 F.3d 424 (1998); Bisaccia v. United States, 2000 WL 703014 (E.D.N.Y.2000); Bisaccia v. United States, 2000 WL 1677747 (E.D.N.Y.2000).

Familiarity with the foregoing will be presumed.

BACKGROUND

Although I have presumed that the reader is familiar with the numerous prior proceedings in this case, perhaps I should also presume the unlikelihood that they will be accessed and read and that a summary historical evolution of this case would be useful.

Stantini and Bisaccia were convicted of conspiring to murder and murder following a jury trial in November, 1993. Stantini was subsequently sentenced to a term of imprisonment of 324 months and Bisaccia to life in prison. The victim was Francesco Oliveri who was murdered in retaliation for a murder committed by Oliveri's sons of a made member of the Gambino Organized Crime Family. Participating in executing that homicide were Bisaccia, Stantini, Lorenzo Mannino, Joseph Gambino and Salvatore Gravano.

Mannino and Gambino were charged with the Oliveri murder in the Southern District of New York. Their trial began in January 1993, and ended in a mistrial in June 1993. Mannino was represented by Charles Carnesi. Because Carnesi had been under investigation by the United States Attorney in that district, a Curcio hearing was held to ascertain whether he could serve as Mannino's counsel free from conflict. At that hearing Mannino was represented by Alan Futerfas and at the conclusion of it Carnesi was permitted to continue to serve.

Stantini and Bisaccia were indicted in this district in April, 1993. The other participants in the murder were named as unindicted co-conspirators. Stantini was represented at trial by Carnesi. Bisaccia was represented by Joel Winograd and George Abdy. As had been noted, they were both found guilty at the end of a six day trial in November 1993.

Mannino and Gambino were re-tried after Bisaccia and Stantini were convicted, but before they were sentenced. In that interval, Stantini moved for a new trial pursuant to Rule 33 Fed. R. Cr. P. and to set aside his conviction pursuant to 28 U.S.C. § 2255. That motion was based upon his claim that Carnesi, representing both him and Mannino, was conflicted and thus was restrained from representing him effectively. Bisaccia claimed that he was also prejudiced by Carnesi's ineffectiveness and he joined in that motion. Their motions were denied without a hearing in 1995 WL 228397, supra.

Stantini and Bisaccia then appealed their conviction and sentence and the denial of their post-conviction motions. Stantini was represented on appeal by Futerfas and Bisaccia by David Lewis of the Legal Aid Society. The Court of Appeals affirmed the conviction and denials in 85 F.3d 9 and certiorari was denied in 519 U.S. 1000, 117 S.Ct. 498, 136 L.Ed.2d 390 in 1996.

In the following year, 1997, Bisaccia and Stantini filed separate motions pursuant to 28 U.S.C. § 2255. Stantini re-asserted Carnesi's ineffective assistance and Futerfas' ineffectiveness in failing to establish it on appeal. Stantini also added a violation of Brady claim and new assertions of Carnesi's ineffectiveness. On this motion, Stantini was represented by his present counsel, David Schoen.

Bisaccia revived his previous claims of Winograd's ineffectiveness and, like Stantini, claimed his appellate counsel was ineffective in failing to establish that. He, too, added a violation of Brady claim alleging that the government wrongfully withheld information which could have been used to impeach Gravano (a cooperating witness at trial) and which was also exculpatory. He was represented by new counsel, Robin Kay Lord.

This Court noting that the first post-conviction motion was styled as being pursuant to Rule 33 and § 2255, regarded this motion as a second and successive one and transferred it to the Court of Appeals in accordance with Liriano v. United States, 95 F.3d 119 (2d Cir.1996) for a determination of whether it should be permitted to be filed. See, 986 F.Supp. at 739, supra. The defendants not having been sentenced when the first motion was decided, the Court of Appeals held that this motion was not second or successive pursuant to § 2255 and re-transferred it. 140 F.3d 424, supra.

In connection with the return to this Court, extensive briefs were submitted by the parties which addressed the issues initially raised in those motions and added new motions to disqualify the Court pursuant to 28 U.S.C. § 455 and for discovery and inspection. In the opinion reported in 2000 WL 703014, supra, those motions and the § 2255 motion were denied. Stantini's and Bisaccia's claims of ineffective assistance by their respective counsel were rejected as were their Brady claims.

On May 1, 2000, Stantini moved for reconsideration of this Court's opinion or, in the alternative, for relief pursuant to Rules 59(e) and 60(b). Bisaccia joined in this motion. This motion was bottomed upon the claim that Stantini's sentence was based upon a flawed guidelines application in violation of the Ex Post Facto Clause of the United States Constitution. In a letter submission dated August 2, 2000, Stantini claimed that his sentence ran afoul of Apprendi. Once again, this Court, for the reasons given in 2000 WL 1677747, supra, viewed this motion as a second or successive § 2255 motion and referred it to the Court of Appeals. The Court of Appeals in Stantini v. United States, 986 F.Supp. 736 (2d Cir.2001), "Ordered that the portion of the authorization motion seeking to raise claims ... in petitioner's Fed. R.Civ.P. 60(b) motion is dismissed as unnecessary and the case is transferred [to this Court] for further consideration in light of ... Rodriguez v. Mitchell, 252 F.3d 191, 198-200 (2001)" (holding that a Fed.R.Civ.P. 60(b) motion should not be construed as an application to file a second or successive 28 U.S.C. § 2254 petition). The Court of Appeals further ordered "that the portion of the authorization seeking to raise a new claim is denied because the claim is not based on newly discovered evidence or on a new rule of constitutional law. See 28 U.S.C. §§ 2255, 2244(a), (b)." A precisely similar mandate was issued by the Court in Bisaccia v. United States on June 20, 2001.

Stantini did not withdraw his Rule 59(e) motion to alter or amend the judgment. That motion must be made within ten days of the judgment, a limitation which is strictly construed and is jurisdictional and cannot be extended in the discretion of the Court. Lichtenberg v. Besicorp Group, Inc., 204 F.3d 397 (2d Cir. 2000). Because the motion was not timely filed, it is barred. The government is correct in also calling attention to the Mandate of the Court of Appeals remanding the case for consideration by this Court of the Rule 60(b) motion only. A consideration of the Rule 59(e) motion is, therefore, beyond the Mandate's scope. See United States v. Quintieri, 306 F.3d 1217 (2d Cir.2002).

This application for a Certificate of Appealability was filed on November 6, 2001. Oral argument was heard on January 11, 2002, following briefing by ail sides. Thereafter, further letter submissions on behalf of Stantini were received dated August 14, 2002, October 29, 2002, January 17, 2003, February 13, 2003 and February 25, 2003. The last submission requesting that the Court conduct a "full and thorough inquiry" based upon an indictment of Gravano in New Jersey was denied in a Memorandum and Order dated March 3, 2003.

Letters on behalf of Bisaccia, dated November 7, 2002, Januaiy 23, 2003 and February 27, 2003, advised that he joined in Stantini's submissions.

Stantini has requested that a "Writ of Mandamus" issue from the Court of Appeals averring that this proceeding has remained dormant since January 11, 2002. As has been indicated, submissions in this matter have continued to be received by this Court as recently as February 27, 2003. If Speedy Trial Act considerations are analogous, the time during which motions are pending is excluded until all submissions are in. See, e.g., United States v. Shakur, 1987 WL 12404 (S.D.N.Y.1987), United States v. Piasecki, 969 F.2d 494, 500 (7th Cir.1992) ("Once a motion is filed ... the excludable delay continues ... until the submissions necessary for the court to reach a decision are complete.") The submissions continued to apprise the Court of recently decided cases the petitioners believed were important for me to consider in...