Brown v. United States of America
Filing
25
ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Brown's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 is DENIED as time-barred. Additionally, Brown's motion for release on bond pending full review of his habeas petition (Dkt. 19; Trial Dkt. 4 75) is DENIED as moot. Because Petitioner has not made a substantial showing of the denial of a constitutional right, no certificate of appealability shall issue. The Clerk of Court is respectfully directed to enter judgment and close this case. So Ordered by Judge Nicholas G. Garaufis on 4/17/2015. (fwd'd for jgm; c/m to pro se) (Lee, Tiffeny)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------------)(
WILLIAM BROWN,
MEMORANDUM & ORDER
Petitioner,
11-CV-4235 (NGG)
-againstUNITED STATES OF AMERICA,
Respondent.
---------------------------------------------------------------------)(
NICHOLAS G. GARAUFIS, United States District Judge.
Petitioner William Brown ("Brown" or "Petitioner"), who is currently incarcerated at the
United States Penitentiary Satellite Camp in Lewisburg, Pennsylvania, brings this pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (the "Petition"). (See Pet. (Dkt. 1).) In
his Petition, Brown asks for additional time to file a federal habeas petition or similar filing; he
asserts claims of ineffective assistance of counsel and alleges that the testimony of a Government
witness was coerced. For the following reasons, Brown's Petition is DENIED.
I.
BACKGROUND
A.
Procedural History
On October 14, 2005, following a three-week jury trial before this court, Petitioner was
convicted of one count of conspiracy to commit securities fraud, five substantive counts of
securities fraud, one count of conspiracy to commit money laundering, and nine substantive
counts of money laundering. (Jury Verdict as to William G. Brown & Vlad Goldenberg (Trial
Dkt. 345).) 1 The jury also rendered a $1.231 million forfeiture verdict against Brown, which
1
Citations referencing "Dkt." are documents from the file of this civil case, Brown v. United States. No. l l-CV4235 (NGG) (E.D.N.Y.). Citations referring to "Trial Dkt." are documents filed during Petitioner's related criminal
proceedings, United States v. Pirgousis, No. 04-CR-159 (NGG) (E.D.N.Y.). "Trial Transcript" or "Tr." refers to the
transcript of Petitioner's criminal trial, United States v. Pirgousis, No. 04-CR-159 (NGG) (E.D.N.Y.), which is filed
1
required him to forfeit the real property at JOO St. Mary's Avenue, Staten Island, New York.
(Jury Verdict on Forfeiture as to William G. Brown & Vlad Goldenberg (Trial Dkt. 347).)
After trial, Brown moved pursuant to Rules 33 and 33.2(a) of the Federal Rules of
Criminal Procedure to vacate the judgment against him and for a new trial. (Mot. to Set Aside
Verdict and Forfeiture J. as to William G. Brown (Trial Dkt. 317).) The court denied Brown's
motion. United States v. Brown, No. 04-CR-159 (NGO), 2006 WL 898043 (E.D.N.Y.
Apr. 4, 2006). On December 15, 2006, this court sentenced Brown to a total of 180 months of
imprisonment, and ordered Brown to pay $14,563,848.30 in restitution and a $1,600 special
assessment. (J. as to William G. Brown (Trial Dkt. 401).) The Second Circuit affirmed Brown's
conviction on appeal, on August 14, 2008. United States v. Pirgousis, 290 F. App'x 388
(2d Cir. 2008) (summary order).
By letter dated August 19, 2009, Brown moved for an extension of time to file a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Mot. for Extension of Time to File a
Federal Habeas Corpus or Similar Filing (Trial Dkt. 451).) In an Order dated September 8, 2009,
the court advised Petitioner that the timeliness of his proposed habeas petition would be
reviewed when he submitted the full petition to the court. (Sept. 8, 2009, Order (Trial
Dkt. 452).) The September 8, 2009, Order also stated clearly that Brown's petition should
include the dates and results of any appeals of the judgment "as well as any other basis for
Brown's argument that his time to file should be extended." Mat I.)
Brown submitted the instant Petition, which is styled as a letter to the court again
requesting an extension of time, on August 30, 2011. (Pet.) The court advised Brown that, due
to the content of that letter and of two additional letters (May 31, 2012, Pet'r Ltr. (Dkt. 9);
at Trial Dkts. 350-359, and citations referencing "Gov't. Ex." refer to exhibits entered into evidence by the
prosecution at Petitioner's criminal trial.
2
June I, 2012, Pet'r Ltr. (Dkt. 10)), it was inclined to construe his August 30, 2011, letter as a
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, and it directed Brown to
inform the court whether he (I) agreed to that characterization or (2) withdrew the petition.
(July 30, 2012, Mem. & Order (Dkt. 11).) See Adams v. United States, 155 F.3d 582, 584 (2d
Cir. 1998) ("[D]istrict courts should not recharacterize a motion purportedly made under some
other rule as a motion made under§ 2255 unless (a) the movant, with knowledge of the potential
adverse consequences of such recharacterization, agrees to have the motion so recharacterized, or
(b) the court finds that, notwithstanding its designation, the motion should be considered as made
under § 2255 because of the relief sought, and offers the movant the opportunity to withdraw the
motion rather than have it so recharacterized."). The court also advised Petitioner to be
"particularly cautious about requesting that the court construe his Jetter as a § 2255 petition
because it appear[ed] that such a petition might be time-barred under§ 2255's one-year period of
limitation." (July 30, 2012, Mem. & Order at 2.) Petitioner was directed to show cause why his
habeas petition was not time-barred, should he choose to have it so characterized. (Id. at 3-4.)
Petitioner affirmed that he wished his August 30, 2011, Jetter to be characterized as a § 2255
petition. (Applicant's Affirmation (Dkt. 12).)
B.
The Fraudulent Scheme and Brown's Role Therein
At Petitioner's trial, the Government established the existence of a "boiler room"
securities fraud scheme operated out of the Staten Island branch office of Delta Asset
Management ("Delta"), a brokerage firm that Brown co-owned and managed. The fraudulent
scheme involved Delta brokers convincing Delta customers to purchase certain securities at
artificially inflated prices. Brown, 2006 WL 898043, at *I. The stock promoters who sold those
"house stocks," in turn, paid kickbacks to Brown and other Delta employees totaling millions of
3
dollars. (!QJ The Government presented its trial evidence through the testimony of three
general categories of witnesses: (1) law enforcement and other regulatory officials employed by
the National Association of Securities Dealers ("NASD"), the Securities and Exchange
Commission ("SEC"), and the Federal Bureau oflnvestigation ("FBI"); (2) several cooperating
witnesses, former co-defendants who pleaded guilty to various charges; and (3) certain victims of
the fraudulent scheme. (Id. at *1-2.) The evidence overwhelmingly established that Brownalong with his partner, Gary Todd2-was one of the co-owners and managers of the Staten Island
branch office of Delta, and that he was involved in the fraudulent stock sales conducted at the
firm.
Before opening Delta, Brown had been working as a registered broker with Todd out of
an office in Staten Island affiliated with Russo Securities. (See Trial Transcript ("Tr.") 767768.) Brown and Todd also conducted business through Continental International Trading, later
called Continental Consulting, where they were partners. (Tr. 362-363, 768.) They employed
around ten brokers at their busiest time. (Tr. 768-770.) Around 1997, while working out of
Russo Securities, Brown met Nick Pirgousis. 3 (Tr. 767-768.)
Pirgousis and his own business partner obtained large blocks of stocks in thinly traded
start-up companies, and they sold them to brokerage firms in return for kickbacks. (Tr. 705706.) Pirgousis entered into such an arrangement with Brown and Todd: They agreed that
Pirgousis would provide Brown and Todd a 50 percent commission for all sales of a particular
stock-American Senior Financial Services-that Brown and Todd sold to their clients.
2
Todd pleaded guilty to one count of conspiracy to commit securities fraud and one count of securities fraud. (See
J. as to Gary Todd (Trial Dkt. 299).)
3
Pirgousis pleaded guilty to one count of conspiracy to commit securities fraud, one count of securities fraud, and
one count of conspiracy to commit money laundering. (See J. as to Nick Pirgousis (Trial Dkt. 442).) Pirgousis
testified at Brown's trial as a cooperating witness. See United States v. Brown, 2006 WL 898043, at *2.
4
(Tr. 770.) Pirgousis, Brown, and Todd engaged in several similar kickback arrangements over
the next two-and-a-half years, while Brown and Todd continued to work out of the Russo
Securities offices. (Tr. 770-72, 784.) At Russo Securities, Brown allowed unlicensed brokers
who worked for him to use his name when conducting business with clients on the telephone.
(Tr. 364-365, 374-375, 773-76.) Several of the brokers who were later involved in the scheme at
Delta first worked with Brown at Russo Securities. (Tr. 349, 362, 366, 713-714, 773-774, 791.)
In approximately early 2000, Brown and Todd left Russo Securities to start their own
broker-dealer. (Tr. 784, 786.) Pirgousis owed Brown and Todd money from a prior deal or
deals during their tenure at Russo Securities, and Pirgousis purchased the real property at 100 St.
Mary's Avenue for Brown and Todd, as a type of kickback. (Tr. 784-785, 787-88.) In
early 2000, Brown and Todd opened up their brokerage firm, under the name E Street Access,
operated out of 100 St. Mary's Avenue. (Tr. 378-379, 787.) Subsequently, in late 2000, Brown
and Todd changed the name of their firm, and they opened up the Staten Island branch of Delta
Asset Management, also operated out of 100 St. Mary's Avenue. (Tr. 183-185, 789-90.) The
title of the property was later transferred into Brown's wife's name. (See Tr. 686, 784-87, 1290;
Gov't Ex. 1718.) At Delta, the kickback scheme continued.
~,Tr.
786, 790, 806-811, 880-
882, 891-903.)
At Delta, Brown directed Mario Rodriguez, one of the only licensed brokers employed
by the Staten Island branch (2-4 licensed brokers out of 15-20 employees) to allow unlicensed
brokers to use his name when speaking with clients, and to change the name on his broker's
license to sound "less ethinic." (Tr. 182, 188, 193-195, 326.) Accordingly, unlicensed brokers
used that broker's d/b/a name ("Mario Casais") when soliciting several large clients to invest in
securities, including those that generated the kickbacks. (Tr. 65-78, 93-94, l 06, 110-119, 122,
5
130-131, 162, 164, 175, 189, 197, 201-209, 227-229, 261-262, 267-268, 328, 347-349, 388-390,
397, 400, 512-514, 517-518, 520, 526-527, 792, 836-837.) Rodriguez testified at trial that
Brown was "one of [his] bosses" at Delta, that Brown "was a partner along with Gary Todd,"
and that Brown and Todd shared an office and together owned the Staten Island branch.
(Tr. 161, 186-187, 190, 200, 212, 318-319, 325.) Mark Shreyberg, an unlicensed broker, also
testified that Brown and Todd were partners at Delta, and co-owners of the Staten Island branch
(Tr. 347-348, 363, 368, 386-387, 418-419), as did Roman Paskinkovsky, the Delta Staten Island
branch manager (Tr. 484, 488, 506-507; see also. e.g., Tr. at 786-791 (Pirgousis testifying that
Todd and Brown shared an office at Delta and controlled the business)).
As noted above, Brown and Todd also owned another business, Continental Consulting;
Continental Consulting, which was later renamed B&G Consulting, also operated out of I 00 St.
Mary's Avenue, and served as a front designed to conceal Brown and Todd's control of Delta
and the kickbacks paid to Brown and Todd by Pirgousis. (Tr. 186-90, 215-219, 325, 365-366,
384,386,388,408,419-420,489,491-492,507-512,638-643,672-673, 717, 753-757,808,873874, 877-880.) Pirgousis frequently paid the kickbacks by transferring money to
Continental/B&G Consulting (Tr. 753-757, 808, 817, 879-882, 885-903; see also Tr. 847, 923924 (transferring shares)); at other times, Pirgousis paid the kickbacks by transferring money to
bank accounts controlled by two jewelry stores, and those stores converted the money into cash
for Brown and Todd in exchange for a fee (Tr. 855-869). Several brokers delivered large
amounts of cash to and/or received large amounts of cash from Brown during the course of the
scheme. (Tr. 211, 219-223, 421-423, 426-431, 531.)
When brokers were subpoenaed to testify in connection with SEC and NASO
investigations into Delta's activities, Brown advised several brokers to be as vague as possible,
6
to say that they did not recall in response to some questions, and/or not to mention that Brown
and Todd owned the firm. (Tr. 170-174, 312, 326, 487-489; see also Tr. 631-632, 751-754.)
II.
DISCUSSION
A.
28 U.S.C. § 2255
Under 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), a prisoner who was sentenced in federal court "may move the court
which imposed the sentence to vacate, set aside, or correct" a conviction or sentence that was
imposed "in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). In
§ 2255 proceedings, a petitioner bears the burden of proof by a preponderance of the evidence.
See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000). "If it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion." Rules Governing§ 2255 Proceedings for
the United States District Courts, Rule 4(b).
Brown's Petition is not styled as a§ 2255 motion. Instead, for the second time, he asks
the court for "some extension of time" in which to file a "federal habeas corpus or similar
filing." 4 (Pet. at 1, 2.) However, in addition to this request for additional time, the Petition also
includes substantive allegations. (See id. at 1-2.) Prose litigants are entitled to a liberal
construction of their pleadings,~ Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), and the
Second Circuit has held that "(w]here a motion, nominally seeking an extension of time, contains
allegations sufficient to support a claim under section 2255, a district court is empowered, and in
4
As explained above, Brown originally filed a letter motion, dated August 19, 2009, requesting an extension of
time to file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255. (Mot. for Extension of Time to File
a Federal Habeas Corpus or Similar Filing (Trial Dkt. 451).) In response to that motion, the court advised Petitioner
that the timeliness of his proposed habeas petition would be reviewed when he submitted the full petition to the
court, and that his petition should include the dates and results of any appeals of the judgment "as well as any other
basis for Brown's argument that his time to file should be extended." (Sept. 8, 2009, Order (Trial Dkt. 452).)
7
some instances may be required, under Haines to treat that motion as a substantive motion for
relief under section 2255." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Because
Brown's Petition alleges substantive claims of ineffective assistance of counsel and coerced
witness testimony, it is properly construed as a § 2255 motion.
B.
Statute of Limitations
Under AEDPA, § 2255 habeas corpus petitions are subject to a one-year statute of
limitations. The one-year limitations period begins to run from the latest of:
(1)
final;
the date on which the judgment of conviction becomes
(2)
the date on which the impediment to making a motion
created by governmental action in violation of the Constitution or
laws of the United States is removed, if the movant was prevented
from making a motion by such governmental action;
the date on which the right asserted was initially recognized
(3)
by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on
collateral review; or
the date on which the facts supporting the claim or claims
(4)
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f).
The Second Circuit affirmed Brown's conviction on April 14, 2008; accordingly, his
conviction became final on November 12, 2008. 5 See Clay v. United States, 537 U.S. 522, 525,
535 (2003) (the conviction of a federal criminal defendant who takes an unsuccessful direct
appeal but does not petition the United States Supreme Court for certiorari becomes "final"
under§ 2255 when the time to file his petition for certiorari expires); see also Sup. Ct. R. 13
(setting the expiration of time for filing a petition for certiorari at ninety days after entry of the
' Brown did not petition the United States Supreme Court for certiorari.
8
judgment of the Court of Appeals). Brown filed the instant Petition on August 30, 2011-almost
three years after his conviction became final. Accordingly, the Petition is untimely under
§ 2255(f)(l) unless Brown can demonstrate that he satisfies one of the (f)(2)-(4) prongs. 6
I.
28 U.S.C. §§ 2255(0(2), 2255(f)(4)
The court liberally construes Brown's filings to assert that the Petition is timely under
§ 2255(f)(2) and/or§ 2255(f)(4), because of Brown's unsuccessful attempt to obtain a copy of a
document that was entered into evidence at his criminal trial. Brown argues that he discovered
"new evidence" consisting of an "NASD Form that alleged [his] acceptance of responsibility ofa
branch office of Delta Asset Management" (Pet. at 1), and that he unsuccessfully sought to
obtain this document under the Freedom of Information Act ("FOIA") (&at 2). In effect, he
argues that his inability to obtain the NASO document through his FOIA request is a
governmental impediment which, when removed, would restart the one-year limitations period,
see § 2255(f)(2), and that this document constitutes "new evidence," the discovery of which
would also begin anew the one-year limitations period,~§ 2255(f)(4).
Indeed, some courts have suggested that in certain circumstances, the government's
failure to fulfill a FOIA request could implicate both of these provisions---constituting a
governmental impediment to a petitioner's ability to file for habeas corpus relief within the
meaning of§ 2255(f){4), and demonstrating the "due diligence in attempting to obtain the
materials" required to trigger§ 2255(f)(2). See Edmond v. U.S. Attorney, 959 F. Supp. 1, 4
(D.D.C. 1997). However, it is not sufficient for a petitioner to show that he did not receive
documents requested of the government; the petitioner must also show how the failure to receive
6
Brown's earlier motion to extend his time to file a § 2255 petition (Trial Dkt. 451) does not affect the timeliness of
the instant Petition. The proper time to rule on the timeliness of a § 2255 petition is after it has been filed. United
States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (per curiam) ("A federal court lacks jurisdiction to consider the
timeliness of a§ 2255 petition until a petition is actually filed.").
9
those documents impeded his ability to file a timely petition. See Felix v. Artuz, No. 98-CV6703 (HB), 2000 WL 278077, at *2 (S.D.N.Y. Mar. 14, 2000) (distinguishing case from Edmond
because petitioner ultimately filed the (untimely) petition without possession of the document in
question, thereby demonstrating that he could have filed it within the statutory period before
receiving the document); see also Sorce v. Artuz, 73 F. Supp. 2d 292, 298 (E.D.N.Y. 1999)
("Edmond stands for the wholly unremarkable proposition that AEDPA's time period does not
begin to run, in cases of newly discovered evidence, until the time when the petitioner should
have discovered the facts supporting his claim. Where a request for documents reveals new
information relevant to a petitioner's claim no toll is necessary for a habeas petition to be timely.
Instead, it is the possession of the relevant evidence that starts the running of the statute anew."
(emphasis added)).
The document that Brown seeks appears to be a branch office agreement for the Staten
Island branch of Delta, the parties to which are Brown and Delta Asset Management, and which
contains Brown's signature. (See Gov't Exs. 503, 827; Tr. 647-650, 687-690; Pet. at 1-2;
June 1, 2012, Pet'r Ltr. at 1-2; Applicant Affirmation at 2-3; Apr. 9, 2012, Pet'r Ltr.
(Trial Dkt. 473) at 2; see also Tr. 738, 1408 (noting that Gov't Exs. 503 and 827 are copies of the
same document).) Brown, by his own admission, has long known about the NASD documenteven prior to his trial. Brown explains that "Miss Alice Barone alerted [him] to the existence of
[the document] after the indictment" (Pet. at 2), and he acknowledges that its "significance ...
was stressed in a pretrial conference" (Applicant's Affirmation at 3). Furthermore, as Brown
states in his Petition, the document was "entered as evidence" at his criminal trial (ill at 1-2; see
also Gov't Exs. 503, 827; Tr. 647-650, 687-690); accordingly, it would be improper to consider
the NASD document newly-discovered evidence within the meaning of§ 2255(£)(4). Similarly,
10
in spite of Brown's efforts to obtain the document through his FOIA request, Brown knew about
the document early on and could have filed his Petition in a timely manner without possession of
the NASD document, as he ultimately did-illustrating that his failure to obtain the document
does not qualify as a § 2255(f)(2) governmental impediment. See Feliz, 2000 WL 278077, at *2
(holding that petitioner failed to establish applicability of§ 2255(f)(2) or§ 2255(f)(4) where he
eventually filed his untimely petition without the receipt of the transcripts he sought, as the
failure to receive the documents clearly had not prevented him from filing).
2.
28
u.s.c. § 2255(f)(3)
In a post-Petition filing, Brown asserts a claim premised on his trial counsel's failure to
advise him with respect to a possible plea agreement, constituting ineffective assistance of
counsel pursuant to Lafler v. Cooper, 132 S.Ct. 1376 (2012), and/or Missouri v. Frye, 132 S. Ct.
1399 (2012). Specifically, Brown claims that while driving to trial, his attorney mentioned that
he had a dialogue with the prosecutor but that the "deal offered was not acceptable to him."
(Applicant Affirmation at 5.) Brown suggests that his Petition is timely pursuant to § 2255(f)(3)
because these cases were decided after the date of his Petition. (Id.) This argument fails. The
Second Circuit has held that Lafler and~ are applications of Strickland v. Washington, 46
U.S. 668 (1984), and do not establish "'a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court."' Gallagher v. United States, 711 F.3d 315,
315-16 (2d Cir.2013) (per curiam) (dismissing a successive habeas corpus petition on this
grounds); see also Castellano v. United States, 967 F. Supp. 2d 768, 769-70 (S.D.N.Y. 2013).
Accordingly, neither Lafler nor Frye implicates 28 U.S.C. § 2255(f)(3) (beginning the one-year
limitations period on "the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme Court and made
11
retroactively applicable to cases on collateral review"), and for Brown to have succeeded in this
argument, he would have been required to raise it within one year of his conviction becoming
final. See Smith v. United States, No. 13-CV-302 (RHB), 2013 WL 3490662, at *2 (W.D. Mich.
July 11, 2013) (rejecting petitioner's argument that petitioner's "claims did not ripen until the
Supreme Court's decision in Lafler and~" because the cases "did not create a new,
substantive legal rule" and holding petitioner's ineffective assistance of counsel claims timebarred pursuant to§ 2255(f)(3)); cf. Gallagher, 711 F.3d at 315-16; Castellano, 967 F. Supp. 2d
at 769-70.
C.
Equitable Tolling
Equitable tolling is only appropriate where '"extend[ing] the statute of limitations beyond
the time of expiration [is] necessary to avoid inequitable circumstances."' Valverde v. Stinson,
224 F.3d 129, 133 (2d Cir. 2000) (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d
Cir. 1996)); see generally Holland v. Florida, 560 U.S. 631 (2010). AEDPA's one-year
limitations period "may be equitably tolled only in 'rare and exceptional circumstances."' Garcia
v. Smith, No. l l-CV-1332 (PKC), 2014 WL 905544, at *7 (E.D.N.Y Mar. 7, 2014) (quoting
Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)). A habeas corpus petitioner must
"demonstrate[] that 'extraordinary circumstances prevented him from filing his petition on time'
and that the petitioner 'acted with reasonable diligence throughout the period he seeks to toll."'
Garcia, 2014 WL 905544, at *7 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (per
curiarn)). Accordingly, the petitioner "must 'demonstrate a causal relationship between the
extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his
filing."' Rivera v. United States, 448 F. App'x 145, 146 (2d Cir. 2011) (summary order)
(quoting Valverde, 224 F.3d at 134). Such a causal relationship is not demonstrated "if the
12
petitioner, acting with reasonable diligence, could have filed on time notwithstanding the
extraordinary circumstance." Valverde, 224 F.3d at 134.
The court construes Brown's filings to contend that the absence of the NASD document
prevented him from filing his habeas petition within the one-year period. However, as discussed
above, Brown could have filed a petition in a timely manner without the NASO document, and
indeed he did file the instant Petition without the document. Accordingly, he has not
demonstrated rare and exceptional circumstances that justify equitable tolling. 7
D.
Actual Innocence
Throughout his filings, Brown asserts his innocence. A final "gateway" to consideration
of a § 2255 petition that would otherwise be time-barred by the AEDP A limitations period is a
"credible and compelling claim of actual innocence." Rivas v. Fischer, 687 F.3d 514, 517-18 (2d
Cir. 2012); see McOuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). 8 However, Brown has not
met the "demanding" standard for such a claim. House v. Bell, 547 U.S. 518, 538 (2006).
The "actual innocence" exception to the AEDPA statute of limitations applies only
'"where a constitutional violation has probably resulted in the conviction of one who is actually
7
Brown's original motion for an extension of time to tile a§ 2255 petition, tiled in his criminal case, asked for
additional time to file because a jailhouse lawyer who was assisting Brown was confined to the Special Housing
Unit for approximately 93 days, and because the law library at the institution at which he was housed was closed on
Saturdays as well as Friday and Sunday evenings. (Mot. for Extension of Time to File a Federal Habeas Corpus or
Similar Filing (Trial Dkt. 451 ).) Despite the court's advisement in its September 8, 2009, Order (Trial Dkt. 452)
that Petitioner include any basis for his argument that his time to tile should be extended in his full petition, Brown
did not include these arguments in either his Petition or his response to the court's order to show cause why the
Petition should not be dismissed as time-barred. (See July 30, 2012, Mem. & Order; Applicant's Affirmation.)
Regardless, the court notes that these difficulties do not constitute "rare and exceptional circumstances" that lasted
throughout the full period sought to be tolled; nor has Brown demonstrated that he acted with reasonable diligence
throughout that period. Notably, Petitioner's other reasons cited for delay-"lack of finances, ignorance of the legal
Applicant's Affirmation at 4-5}-also do
system and incarceration" and an attempt to obtain pro bono counsel
not rise to this level. Indeed, these are quite the opposite ofurare and exceptional circumstances," as these are
difficulties faced by nearly all habeas corpus petitioners.
oo
8
McOuiggin and Rivas considered the 28 U.S.C. § 2244(d)(l) statute oflimitations, which applies to habeas
petitions filed by state prisoners. "Because the limitations language of28 U.S.C. §2255(!) is nearly identical and the
reasoning of those cases is equally applicable in this context, the court assumes that the actual innocence exception
would be available to a§ 2255 petitioner who satisfies its stringent standard." Oadar v. United States, No. 13-CV2967 (ARR), 2014 WL 3921360, at *6 n.7 (E.D.N.Y. Aug. 11, 2014).
13
innocent."' Rivas, 687 F.3d at 540 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). The
Supreme Court has cautioned that a '"petitioner does not meet the threshold requirement unless
he persuades the district court that, in light of the new evidence, no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt."' McQuiggin, 133 S. Ct. at
1928 (quoting Schlup v. Delo, 513 U.S. 298 (1995)).
"For the claim to be 'credible,' it must be supported by 'new reliable evidence-whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial."' Rivas, 687 F.3d at 541 (quoting Schlup, 513 U.S.
at 324). "For the claim to be 'compelling,' the petitioner must demonstrate that 'more likely than
not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable
doubt--or to remove the double negative, that more likely than not any reasonable juror would
have reasonable doubt." Id. (quoting House, 547 U.S. at 538). At the least, the petitioner must
"introduce credible new evidence that thoroughly undermines that evidence supporting the jury's
verdict." Id. at 543.
Brown has not put forth new evidence sufficient to satisfy either of these requirements.
Brown claims two items of "new," purportedly exonerating evidence. First, he relies upon the
NASO document that he has been seeking via the FOIA request. He claims that this document
was his only "link to [Delta]," and that it contains his forged signature; accordingly, he appears
to believe that proof that his signature on the document was forged would exonerate him. (Pet.
at 1; June 1, 2012, Pet'r Ltr. at 2; Applicant Affirmation at 3.) As explained previously, the
NASO document itself cannot be said to constitute "new" evidence, as Brown was aware of it
prior to his trial, and it was even entered into evidence at trial. See Rivas, 687 F.3d at 541.
14
Moreover, even if Brown were able to submit new, credible evidence of the purported
forgery (for example, an expert handwriting comparison, or sworn testimony by the alleged
forger), this would not constitute "compelling" evidence such that more likely than not, any
reasonable juror would have reasonable doubt as to Brown's guilt. This is because Brown
overestimates the importance of this document in the outcome of the trial. The facts supported
by the document-Brown's ownership and management of Delta-were also supported by
substantial testimony and additional documentation at trial. For example, all of the cooperating
witnesses testified that Brown and Todd co-owned and controlled Delta. (E.g., Tr. 190
(Rodriguez), 386-387 (Shreyberg), 507 (Paskinkovsky), 786-790 (Pirgousis).) Among other
ways, Brown illustrated his control by directing Mario Rodriguez to allow unlicensed Delta
brokers to use his d/b/a name, Mario Casais, when speaking with clients. (Tr. 182, 188, 193-195,
326.) Moreover, there was substantial evidence that Continental/B&G Consulting, which Brown
and Todd co-owned, was merely a shell company that served as a front to conceal Brown and
Todd's control of Delta and their receipt of kickbacks, including bank records that corroborated
that unlicensed Delta brokers were paid by checks drawn on Continental's account. ffi&,
Tr. 186-90,215-219,325,365-366,384,386,388,408,419-420,489,491-492,507-512,638463, 672-673, 717, 753-757, 808, 873-874, 877-880.) Additionally, Brown acknowledged under
oath during testimony given before the SEC that the signature on the NASO document was in
fact his. (See Tr. 669-675, 686-690; Gov't Exs. 826, 830; see also Gov't Exs. 503, 827.)
Second, Brown submits new evidence regarding allegedly coerced testimony by Mark
Shreyberg, a cooperating witness who testified for the prosecution at trial. Brown encloses an
affidavit from an individual named Larry Schuster, discussing statements purportedly made by
Shreyberg to Schuster and other "members ... of the New York City Russian Community."
15
(Schuster Aff. (May 20, 2013, Pet'r Ltr. (Dkt. 16) at 3).) In the document, Schuster claims that
"on more than one occasion Mark Shreyberg stated that he was intimidated, forced and
unwillingly coerced into testifying and embellishing on many issues during the jury trial of one
William G. Brown where Mister Shreyberg appeared as the prosecution's government witness,"
and that "the United States Attorney's Prosecutor threatened him with the dis[s]olution of his
family by deporting Mister Shreyberg from the United States to his homeland." (!sh at 3, 'lf'lf 2-3.)
In a separate filing, Brown contends that Shreyberg "called [Brown's] home after the trial, in
tears," and said "his testimony was coerced with threats of deportation and the breaking up of his
family." (June 1, 2012, Pet'r Ltr. at 4.)
This evidence, consisting entirely of hearsay statements, is not credible. See Oadar v.
United States, No. 13-CV-2967 (ARR), 2014 WL 3921360, at *7 (E.D.N.Y. Aug. 11, 2014)
("The fact that petitioner's 'new evidence' consists entirely of hearsay statements ... is a factor
that weighs against the reliability of the evidence."). Schuster does not state any specifics
regarding where or when Shreyberg purportedly made any of these hearsay statements. (See
generally Schuster Aff.) And the affidavit consists, at least in part, of double hearsay, attesting
to what Shreyberg allegedly stated "in the presence of ... other members of[the New York City
Russian] Community." (!sh 'If 2.) Brown's own statement, for its part, is both self-serving and
unswom. 9
9
Notably, for years Brown has been attempting unsuccessfully to suggest that Shreyberg perjured himself at trial.
In his post-trial Rule 33 motion, Brown argued that there was "newly discovered evidence" that tended to show that
Shreyberg had lied when asked "whether one of the main reasons for testifying was so that his father-in-law, Gary
Todd, would receive some consideration in his sentencing. At trial the witness outright denied this fact."
(Affirmation in Supp. of Mot. to Set Aside Verdict and Forfeiture J. as to William G. Brown (Trial Dkt. 317) 1122.)
As the court explained in its denial the Rule 33 motion, the sentencing letters Brown pointed to did not prove that
Shreyberg had perjured himself-they indicated only that Todd had encouraged Shreyberg to become a cooperator,
not that it was part of Shreyberg's plea agreement to decrease Todd's sentence. (Apr. 4, 2006, Mem. & Order at 1011.)
16
Because Brown has failed to show that the actual innocence exception applies, the court
must treat his Petition as untimely.
IV.
CONCLUSION
For the foregoing reasons, Brown's petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2255 is DENIED as time-barred. Additionally, Brown's motion for release on bond
pending full review of his habeas petition (Dkt. 19; Trial Dkt. 4 75) is DENIED as moot.
Because Petitioner has not made a substantial showing of the denial of a constitutional right, no
certificate of appealability shall issue. The Clerk of Court is respectfully directed to enter
judgment and close this case.
SO ORDERED.
s/Nicholas G. Garaufis
ICHOLAS G. GARAUFIS
nited States District Judge
Dated: Brooklyn, New York
April J1, 2015
17
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?