Alexeev v. United States of America

Filing 22

ORDER denying 19 Motion for Summary Judgment; denying 20 Motion for Reconsideration ; denying 21 Motion for Recusal -- For the reasons set forth in the ATTACHED MEMORANDUM AND ORDER, pro se Petitioner's 3 motions are denied in th eir entirety. Petitioner is further denied a certificate of appealability as he fails to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrel l, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). Furthermore, Petitioner has now filed four meritless motions on this docket after this Court denied his 28 U.S.C. § 2255 motio n, the Second Circuit dismissed his appeal, and this case was closed. As discussed in detail in the Attached Memorandum and Order, Petitioner is hereby admonished that if he continues to file multiple frivolous and baseless motions challenging his p rior federal conviction and sentence, he will face filing injunctions. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and, therefore, in forma pauperis status is de nied for purpose of any appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se Petitioner. This case was closed previously by Court order. SO ORDERED by Judge Dora Lizette Irizarry on 7/28/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BORIS ALEXEEV, pro se,
:
:
Petitioner,
:
:
-against:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
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MEMORANDUM & ORDER
10-CV-3968 (DLI)

DORA L. IRIZARRY, United States District Judge:
Pro se petitioner Boris Alexeev (“Petitioner”) was convicted, upon his guilty plea, of
Hobbs Act robbery and conspiracy to obstruct justice. On March 19, 2008, this Court sentenced
him to 168 months of incarceration, followed by three years of supervised release. (Sentencing
Tr. at 43, Docket No. 04-cr-1041,1 Dkt. Entry No. 415.) On May 29, 2009, the Second Circuit
Court of Appeals (“Second Circuit”) affirmed the judgment of this Court. See United States v.
Grabsky, 330 F. App’x. 259 (2d Cir. 2009). A writ of certiorari to the Supreme Court was
denied on October 13, 2009. Alexeev v. United States, 558 U.S. 957 (2009).
On October 12, 2010, Petitioner, proceeding pro se, filed a petition challenging his
sentence pursuant to 28 U.S.C. § 2255. (See generally Pet., Dkt. Entry No. 1; Mem. of Points
and Authorities in Supp. of Pet., Dkt. Entry No. 2.) This Court denied the petition on March 27,
2014. (See generally Mem. & Order of Mar. 27, 2014, Dkt. Entry No. 12.) Petitioner then
appealed the Court’s decision to the Second Circuit, which denied Petitioner a certificate of
appealability and dismissed the appeal on December 10, 2014. (See Mandate of U.S. Ct. of
Appeals for the 2d Cir., Dkt. Entry No. 16.) Next, on December 12, 2014, Petitioner filed a
1

“Docket No. 04-cr-1041” is a reference to the criminal case docket underlying the instant
motion.

motion for reconsideration of the Court’s order denying his petition.

(See Mot. for

Reconsideration, Dkt. Entry No. 17.) The Court denied his motion for reconsideration on April
7, 2015. (See Order of Apr. 7, 2015.)
Most recently, Petitioner filed three separate motions2 in an attempt to further challenge
his conviction. Petitioner filed a motion for recusal, summary judgment, and reconsideration of
the Court’s April 7, 2015 Order.
DISCUSSION
I.

Motion for Recusal
To determine whether the Court will decide Petitioner’s other motions, the Court will

first address Petitioner’s motion for recusal. Petitioner moves for this Court’s recusal pursuant to
28 U.S.C. § 455(b)(1) arguing that the Court “display[ed] bias as well as prejudice in ruling fair
and just on Petitioner’s pro-se [sic] pleading.” (Mot. for Recusal at 1, Dkt. Entry No. 21.) As an
example of the Court’s prejudice, Petitioner cites to the Court’s April 7, 2015 Order, which
denied Petitioner’s motion for reconsideration of his 28 U.S.C. § 2255 motion because Petitioner
failed to demonstrate any exceptional circumstances or cite to any applicable law to justify relief
from the Court’s previous judgment. (See id. at 1-2.) Petitioner does not give any other reasons
to support his motion for recusal.
Title 28, section 455(b)(1) of the United States Code provides that a judge of the United
States shall disqualify herself where “[s]he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. §
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In reviewing Petitioner’s motions, the court is mindful that, “[a] document filed pro se is to be
liberally construed and a pro se [pleading], however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,
94 (2007). Accordingly, the court interprets the motions “to raise the strongest arguments that
they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006)
(emphasis omitted).
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455(b)(1). The Second Circuit has stated that, in evaluating a motion for recusal under this
section, “determination of bias under this section must be based on extrajudicial conduct” and
not on decisions or rulings adverse to a party or information learned in a judge’s official
capacity. In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1314 (2d Cir. 1988).
Petitioner has not cited to any extrajudicial prejudicial conduct nor has he articulated any
reason why this Court’s impartiality reasonably could be questioned. The only example of the
Court’s purported prejudice Petitioner puts forth is the Court’s denial of Petitioner’s motion for
reconsideration. Besides not being in any way prejudicial, it is also a decision the Court made in
its official capacity. As discussed above, decisions adverse to a party or made in a judge’s
official capacity clearly are excluded from the type of conduct that can be considered in
evaluating a section 455(b)(1) recusal. Therefore, Petitioner’s recusal motion is denied and the
Court will address Petitioner’s remaining motions.
II.

Motion for Summary Judgment
On April 13, 2015, Petitioner filed a motion for summary judgment pursuant to Federal

Rule of Civil Procedure 56(a). (Mot. for Summ. J. at 1, Dkt. Entry No. 19.) In his motion,
Petitioner asks the Court to “grant summary judgment in favor of [P]etitioner, based on
[P]etitioner’s Rule 60(b) motion and amendment 787 and to release Petitioner thirty months
early, as it would save the United States Bureau of Prisons (“BOP”) “$50,000 to $70,000 dollars
for the next two years.” (Id.)
Apart from being procedurally defective, Petitioner’s motion clearly is meritless as it
asserts no cognizable grounds on which the Court can grant summary judgment relief.
Petitioner’s argument that the Court should release Petitioner early in order to reduce the BOP’s
costs is a baseless argument for granting post-conviction relief. Petitioner’s motion for summary

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judgment is therefore denied.
III.

Motion for Reconsideration
Petitioner filed a second motion for reconsideration on April 23, 2015. Petitioner moves

under Federal Rule of Civil Procedure 59(e) for the Court to reconsider its April 7, 2015 decision
denying Petitioner’s first motion for reconsideration of the Court’s order denying Petitioner’s 28
U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. (See Second Mot. for
Reconsideration at 1-2, Dkt. Entry No. 20.) In his second motion for reconsideration, Petitioner
argues that the Court failed to consider an amendment to United States Sentencing Guideline
(“U.S.S.G.”) section 2L1.2 that Petitioner cited to in his first motion for reconsideration. (See id.
at 2; Mot. for Reconsideration at 1 & 3.)
Here, Petitioner seeks to relitigate an issue that has already been decided and now
reviewed twice by this Court and once by the Second Circuit. The amendment to U.S.S.G. 2L1.2
that Petitioner cites to in his first and second motions for reconsideration does not apply to his
case as U.S.S.G. 2L1.2 is applicable only to cases of illegally reentering or remaining in the
United States after conviction of a crime, which does not apply to Petitioner. See U.S.S.G. §
2L1.2.

As the second motion for reconsideration is utterly meritless and merely seeks to

relitigate issues that this Court has decided twice already, the second motion for reconsideration
is denied.
Moreover, as Petitioner has already filed one motion pursuant to § 2255, to which he is
entitled, any future filing that seeks to collaterally attack his conviction, even if not labeled as a §
2255 motion, is subject to the restriction on second or successive habeas petitions codified in the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Gonzalez v. Crosby,
545 U.S. 524, 530 (2005) (defining a motion for reconsideration as a second or successive
habeas petition in the context of 28 U.S.C. § 2254); Schwamborn v. United States, 507 F.Supp.2d
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229, 239-40 & n.19 (E.D.N.Y. 2007) (applying Gonzalez v. Crosby to § 2255 petitions). “When
a petitioner makes a second or successive § 2255 motion without authorization from the
appellate court, the district court may transfer the motion to the appropriate appellate court for
the purpose of seeking authorization ‘if it is in the interest of justice to do so.’” Schwamborn,
507 F.Supp.2d at 241 (quoting 28 U.S.C. § 1631). However, as Petitioner has made only
meritless claims already argued in his first § 2255 motion, the Court declines to transfer this
motion. If Petitioner wishes to pursue his claim then he must make an application to the Second
Circuit Court of Appeals for permission to proceed with a second or successive motion. See 28
U.S.C. § 2244(b)(3)(A).
CONCLUSION
For the reasons set forth above, Petitioner’s motions are denied in their entirety.
Petitioner is further denied a certificate of appealability as he fails to make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Fed. R. App. P.
22(b); Miller–El v. Cockrell, 537 U.S. 322, 336 (2003); Lucidore v. New York State Div. of
Parole, 209 F. 3d 107, 112 (2d Cir. 2000). Furthermore, Petitioner has now filed four meritless
motions on this docket after this Court denied his 28 U.S.C. § 2255 motion, the Second Circuit
dismissed his appeal, and this case was closed. “The district courts have the power and the
obligation to protect the public and the efficient administration of justice from individuals who
have a history of litigation entailing vexation, harassment and needless expense to other parties
and an unnecessary burden on the courts and their supporting personnel.” Lau v. Meddaugh, 229
F.3d 121, 123 (2d Cir.2000) (internal quotation marks and citations omitted); see also Persaud v.
United States, 2010 WL 3000725, at *3 (E.D.N.Y. July 27, 2010) (applying Lau v. Meddaugh to
§ 2255 motions). Petitioner is hereby admonished that if he continues to file multiple frivolous
and baseless motions challenging his prior federal conviction and sentence, he will face filing
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injunctions. See Safir v. U .S. Lines, Inc., 792 F.2d 19, 23 (2d Cir. 1986) (finding district court's
authority to enjoin litigant who engages in multiplicitous and baseless litigation from future
access to the courts).
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith, and, therefore, in forma pauperis status is denied for purpose of
any appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
July 28, 2015
/s/
DORA L. IRIZARRY
United States District Judge

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