DEDONA v. UNITED STATES OF AMERICA

Filing 31

MEMORANDUM AND ORDER that the Clerk shall reopen this case for the sole purpose so that this Court can consider Petitioner's Emergency Petition (ECF No. 29 ); that the Emergency Petition (ECF No. 29 ) is DENIED; that a certificate of appealability shall not issue; that the Clerk of the Court shall close this matter. Signed by Judge Brian R. Martinotti on 6/18/2019. (mmh)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANDREW DEDONA, III,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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Civil Action No. 08-2046 (BRM)

MEMORANDUM ORDER

THIS MATTER is opened to the Court by pro se petitioner Andrew Dedona, III,
(“Petitioner”), upon the filing of a Rule 60(b) motion, described by Petitioner as an “Emergency
Petition for Relief,” filed pursuant to Federal Rule of Civil Procedure 60(b)(4). (ECF No. 29.)
IT APPEARING THAT:
1. Petitioner previously filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255 (ECF No. 1), that was denied on August 31, 2009. (ECF Nos. 1920.)
2. Petitioner’s subsequent Motion for Reconsideration (ECF No. 22), was duly denied on
October 9, 2009. (ECF No. 25.)
3. Petitioner now submits in the instant motion, which he describes as a “petition to
declare the indictment and judgment in this case void, ab initio” that his underlying
conviction was obtained as a result of due process violations, which include inter alia,
a biased judge (ECF No. 29 at 1-2), prosecutorial misconduct for knowingly pursuing
a conviction without proper statutory authority and “lack of the jurisdiction” that render
his conviction void. (Id. at 8.) Furthermore, Petitioner submits that an evidentiary

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hearing is necessary for him to present witnesses and evidence that would prove “actual
innocence as a matter of law.” (Id. at 8.) The Court notes that Petitioner’s “Exhibit C”
is a “list of witnesses for offer of proof.” (Id. at 57.) The list includes several private
individuals as well as public servants such as a former federal judge of the United States
District Court for the Eastern District of Wisconsin, a member of the United States
House of Representatives, current and former United States Congress staff, researchers,
attorneys unrelated to Petitioner’s underlying conviction and or his habeas petition and
unnamed prison inmates. Petitioner provides these witnesses can all provide testimony
supporting Petitioner’s proffer that he was convicted pursuant to an invalid statute.
4. The instant petition appears to be a second or successive Section 2255 petition,
notwithstanding Petitioner’s argument to the contrary. 1
5. “Rule 60(b) allows a party to seek relief from a final judgment, and request reopening
of his case, under a limited set of circumstances including fraud, mistake, and newly
discovered evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). While Petitioner
refers to the “fraud on the court by the prosecutor” (ECF No. 29 at 1), as one basis for
bringing the instant motion, he appears to be advancing the same jurisdiction claim that
he made in his first Section 2255 petition, albeit this time within the context of the
prosecutor’s alleged misconduct. (See ECF No. 1-1 at 29-34.) Petitioner’s submission
appears to be an attack on his underlying conviction and not his Section 2255
proceeding. See Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004) (“[W]hen the

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Petitioner provides that the instant petition does not qualify as a petition under Section 2255
because “[I]t does not attack the sentence; it attacks whether a case could even exist due to lack of
jurisdiction.” (ECF No. 29 at 4.)
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Rule 60(b) motion seeks to collaterally attack the petitioner’s underlying conviction,
the motion should be treated as a successive habeas petition.”)
6. Consequently, this Court will deny the emergency petition as a second or successive
Section 2255 motion. See Robinson v. Johnson, 313 F.3d 128, 139 (3d Cir. 2002)
(“Unless the court of appeals grants such permission, the district court may not consider
the second or successive petition.”).
7. Whenever a civil action is filed in a court that lacks jurisdiction, “the court shall, if it
is in the interest of justice, transfer such action . . . to any other such court in which the
action . . . could have been brought at the time it was filed.” 28 U.S.C. § 1631. In this
case, this Court will not transfer Petitioner’s emergency petition to the Third Circuit
for its consideration as a second or successive § 2255 motion. 2
8. Finally, this Court must determine whether Petitioner is entitled to a certificate of
appealability in this matter. See Third Circuit Local Appellate Rule 22.1. The Court
will issue a certificate of appealability if the petitioner “has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has not made
a substantial showing of denial of a constitutional right, and this Court will not issue a
certificate of appealability.
Accordingly, for the reasons set forth above and for good cause appearing,
IT IS on this 18th day of June 2019;
ORDERED that the Clerk shall reopen this case for the sole purpose so that this Court can
consider Petitioner’s Emergency Petition (ECF No. 29); and it is further

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Nothing in this Memorandum Opinion should be construed by Petitioner as preventing him from
filing a request to file a second or successive § 2255 motion in the Third Circuit for that Court’s
consideration in the first instance.
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ORDERED that the Emergency Petition (ECF No. 29) is DENIED; and it is further
ORDERED that a certificate of appealability shall not issue; and it is further
ORDERED that the Clerk of the Court shall close this matter; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this Order and the
accompanying Memorandum Opinion on Petitioner by regular mail.

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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