United States v. Matsa, CASE NO. 2:15-CV-700
| Decision Date | 06 October 2017 |
| Docket Number | CRIM. NO. 2:09-CR-297,CASE NO. 2:15-CV-700 |
| Parties | UNITED STATES OF AMERICA, Respondent, v. ARISTOTLE R. MATSA, et al., Petitioner. |
| Court | U.S. District Court — Southern District of Ohio |
Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 424.) This matter is before the Court on the § 2255 motion, Respondent's Response in Opposition, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 424) be DENIED and that this action be DISMISSED. In addition, Petitioner's Motion to Cause the Electronic Inclusion of All Documents Previously filed in This Matter by The Petitioner (ECF No. 428) and Motion to Strike Response to Motion (ECF No. 431) are DENIED. Respondent's motion to hold answer in abeyance (see ECF No. 429) is DENIED as moot.
In conjunction with the filing of the Motion to Vacate under 28 U.S.C. § 2255, Petitioner has filed six "Appendix Exhibits" with the Clerk. These exhibits total thousands of pages in length, in addition to the 274 pages included in the § 2255 petition. Due to the voluminous nature of the filing, the Clerk permitted the manual filing of Petitioner's exhibits, and copies of these documents are housed in the Clerk's Office. Petitioner requests that the Clerk be directed to scan all of his attached "Appendix Exhibits" so that they may be viewed via the Court's CM/ECF electronic filing system. Petitioner additionally has filed a Motion to Strike Respondent's response in opposition (ECF No. 431) to Petitioner's motion for electronic inclusion of his exhibits as untimely pursuant to Rule 7.2(a)(2) of the Local Rules of the Southern District of Ohio, which provides that a memorandum in opposition must be filed within twenty-one days of the date of service of the motion, and for failure to provide Petitioner with a copy of the filing.
Petitioner's motions are DENIED. The docket indicates that Respondent served Petitioner with a copy of the response in opposition by mail at Petitioner's current address at the Ashland Federal Correctional Institution. Further, although Respondent waited more than the required twenty-one days to file the response in opposition, nothing contained therein alters or otherwise affects this Court's ruling on the matter. See, e.g., Younker v. Ohio State Univ. Med. Ctr., No. 2:11-cv-00749, 2013 WL 3222902, at *2 (S.D. Ohio June 25, 2013) (). The Court will not require the Clerk to scan the voluminous exhibits Petitioner has attached in support of his § 2255 motion for electronic viewing on the CM/ECF docket. The exhibits have been manually filed and are available and accessible for viewing in the Clerk's Office.
Additionally, the Local Rules of this Court provide that the memorandum in support of the Petition shall include a "brief statements of the grounds, with a citation of authorities relied upon." S.D. Ohio Civ. R. 7.2(a)(1). Petitioner has made no attempt to comply with this rule. The Local Rules expressly indicate the Court prefers that a memoranda in support not to exceed twenty pages in length. In all cases in which the memoranda exceeds twenty pages, a table of contents and "succinct, clear, and accurate summary, not to exceed five pages, indicating the main sections of the memorandum and the principal arguments and citations to primary authoritymade in each section, as well as the pages on which each section and any sub-sections may be found" shall be included. S.D. Ohio Civ. R. 7.2(a)(3). Petitioner has vastly exceeded this Court's twenty-page limitation on memoranda in support and failed to comply with the Court's Local Rules. He has not provided a table of contents or any clear and succinct summary of his arguments for this Court's review. His memoranda and supportive documentation are therefore subject to dismissal on this ground alone. Id.; see Martinez v. United States, 865 F.3d 842, 844 (6th Cir. 2017)(affirming the District Court's dismissal of the § 2255 motion based on the petitioner's failure to comply with page limitations required under local rules).
Consequently, Petitioner's Motion to Cause the Electronic Inclusion of All Documents Previously filed in This Matter by The Petitioner (ECF No. 428) and Motion to Strike Response to Motion (ECF No. 431) are DENIED.
The United States Court of Appeals for the Sixth Circuit summarized the facts as follows:
Matsa was a licensed real-estate broker and lawyer in Ohio. He routinely reported losses or minimal income from his businesses, such that from 1985 to 2006 he paid a total of $107 in federal income tax. His legal troubles began when Chrissoula Matsa, his wife at the time with whom he was undergoing divorce proceedings, tipped off law enforcement to his shady dealings. A subsequent investigation by the federal grand jury revealed a number of dubious practices, including the use of phony trusts to mask personal assets, the failure to report rental income, and the transfer of property (though not actual control) to friends and relatives. During the investigation, Matsa failed to comply fully with the government's subpoena of his records. Based on this conduct, the grand jury indicted Matsa for one count of corrupt interference with administration of the internal revenue laws, 26 U.S.C. § 7212(a); fifteen counts of assisting preparation of false tax returns, 26 U.S.C. § 7206(2); one count of failing to report a foreign bank account, 31 U.S.C. §§ 5314, 5322(b); one count of conspiracy to obstruct justice, 18 U.S.C. § 371; two counts of witness tampering, 18 U.S.C. § 1512(b); one count of making a false statement, 18 U.S.C. § 1001; and one count of obstruction ofjustice, 18 U.S.C. § 1503(a). The grand jury also indicted Matsa's mother for conspiracy to obstruct justice and tried them together. A jury found Matsa guilty on all counts after a five-week trial, and the court sentenced him to a term of 85 months' imprisonment.
United States v. Matsa, 540 F. App'x 520, 522 (6th Cir. 2013) cert. denied, ___ U.S. ___, 134 S. Ct. 1502 (2014). Petitioner raised the following claims on direct appeal:
1) the district court's decision to remove his counsel of choice violated his Sixth Amendment rights; 2) the prosecution engaged in systematic misconduct that deprived him of due process; and 3) the authorities obtained an invalid search warrant by failing to inform the magistrate about their confidential informant.
Id. On October 25, 2013, the Sixth Circuit affirmed the judgment of this Court. On March 3, 2014, the United States Supreme Court denied the petition for a writ of certiorari. (ECF No. 418.)
On February 24, 2015, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 424.) He asserts that he was denied a fair trial based on prosecutorial misconduct; that he should receive a two point reduction in his recommended sentence under the United States Sentencing Guidelines pursuant to Amendment 782, effective November 1, 2014; and that he is actually innocent of the charges against him. Petition (ECF No. 424, PageID# 88748.) It is the position of the Respondent that Petitioner's claims are procedurally defaulted and without merit.
In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 784 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)(per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States orwhen the trial court lacked jurisdiction, when the sentence was in excess of the maximum sentence allowed by law, or when the judgment or conviction is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is "whether the claimed error was a 'fundamental defect which inherently results in a complete miscarriage of justice,'" Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, "'[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exceptional circumstances.'" DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)(quoting United States v. Brown, No. 94-5917, 1995 WL 465802, 62 F.3d 1418, at *1 (6th Cir. Aug. 4, 1995), cert. denied, 516 U.S. 942 (1995)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion to vacate under § 2255 unless the petitioner shows: (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously; or (2) that he is "actually innocent" of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013)(citing Bousley v. United States, 523 U.S. 614, 622 (1998))(internal citations omitted).
Petitioner seeks a two point reduction in his recommended sentence under the advisory United States Sentencing Guidelines pursuant to Amendment 782, which revised the guidelines applicable to drug trafficking offenses by changing how the base offense levels in the Drug Quantity Table in U.S.S.G. § 2D1.1 (...
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