Batista v. United States of America
ORDER denying 47 Motion for Reconsideration ; denying 52 Motion to Amend/Correct/Supplement -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Petitioner's motions for Reconsideration, to Strike and to Amend the Petition are denied. SO ORDERED by Chief Judge Dora Lizette Irizarry on 8/25/2017. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LUIS M. BATISTA,
UNITED STATES OF AMERICA,
DORA L. IRIZARRY, Chief Judge:
MEMORANDUM AND ORDER
On February 10, 2014, Petitioner filed a motion, pro se, 1 pursuant to 28 U.S.C. § 2255,
challenging his October 2009 convictions for conspiracy to distribute a controlled substance,
obstruction of justice, and bank fraud, on the grounds that he received ineffective assistance of
counsel. (See generally Petition, Dkt. Entry No. 1.) After Plaintiff challenged the affidavits
submitted by his trial counsel and requested additional discovery (See Mot. to Strike, Dkt. Entry
No. 13; Mot. for Discovery, Dkt. Entry No. 23), on August 31, 2016, this Court denied Petitioner’s
motion to strike his former attorneys’ declarations, but permitted him limited discovery regarding
his trial counsel’s plea negotiations with the government. See Batista v. United States, 2016 WL
4575784 (E.D.N.Y. Aug. 31, 2016) (“August 31 Order”). Specifically, the Court ordered his two
trial lawyers and a representative from the government’s trial team to file affidavits “describing
any plea offers made by the government, including the dates on which any offers were extended
and expired.” Id. at *2.
Since the August 31 Order, Plaintiff has made three separate applications that currently are
before the Court (the “Motions”). First, on September 14, 2016, Petitioner moved to reconsider
Petitioner initiated this habeas action pro se. However, Bernard V. Klienman, Petitioner’s appellate counsel,
appeared in this on his behalf action on January 20, 2016.
the August 31 Order, on the ground that the Court failed to consider the argument raised in the
reply brief of his motion to strike the declaration of his former counsel, Anthony Ricco, i.e., that
the declaration did not contain a valid signature. (Motion for Reconsideration, Dkt. Entry No. 47.)
Second, after the affidavits contemplated in the August 31 Order were filed (See Dkt. Entry Nos.
48, 49, 50), Petitioner moved to strike any portion of the affidavits “(1) that goes beyond the scope
of the discovery sought by Petitioner and the Court’s Order, itself, and (2) where the declarations
made are questionable” (Letter from B. Kleinman, Dkt. Entry No. 51 (“Motion to Strike”)). Third,
on October 28, 2016, Petitioner filed a motion seeking leave to amend the Petition, or otherwise
move pursuant to 18 U.S.C. § 3582(c)(2), on the basis he should be resentenced following
Amendment 794 to the United States Sentencing Guidelines (“U.S.S.G.”), which made changes to
the commentary regarding the mitigating role reduction set forth in U.S.S.G. § 3B1.2(a). (Motion
to Amend § 2255 Petition, Dkt. Entry No. 52 (“Motion for Leave”).)
For the reasons set forth below, the Motions are denied.
Motion for Reconsideration
In the Motion for Reconsideration, Petitioner principally contends that the Court failed to
consider an additional argument in support of his motion that was set forth for the first time in his
reply brief. (See Reply in Further Support of Motion to Strike, Dkt. Entry No. 21 (“Reply IFSO
Mot. to Strike”).) In his original motion to strike, Petitioner argued that the affidavits from both
Mr. Ricco and Mr. Moschella did not conform to the requirements of 28 U.S.C. § 1746, and that
Mr. Ricco’s declaration exceeded the scope of Petitioner’s waiver of the attorney-client privilege.
(See Mot. to Strike.) In his reply brief, Petitioner reiterated these arguments, but also noted for the
first time that “a more careful examination of Ricco’s declaration reveals that the document is
devoid of a proper signature” because it “employs a computer generated image of [Mr. Ricco’s]
name using a cursive font.” (Reply IFSO Mot. to Strike at 3.) In the Motion for Reconsideration,
Petitioner argues that this Court failed to address this argument.
(See generally Mot. for
As an initial matter, the Court is entitled to disregard any legal argument raised for the first
time on reply, particularly since the government had no opportunity to oppose it. See In re Harris,
464 F.3d 263, 268 n.3 (2d Cir. 2006); Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110,
112 (2d Cir. 1999) (per curiam). Importantly, in the time since Petitioner filed his Motion for
Reconsideration, the Second Circuit Court of Appeals has rejected his arguments as to this issue,
. . . Petitioner has not demonstrated ‘a clear and indisputable’ abuse of discretion
on the part of the district court because the issues that were not explicably addressed
in the August 2016 order were first raised in a reply, Petitioner does not demonstrate
that he was clearly entitled to prevail on those issues, and, in any event, mandamus
relief is not warranted for the type of error alleged by Petitioner. See In re
Steinhardt Partners, L.P., 9 F.3d 230, 233 (2d Cir. 1993) (stating that a mandamus
petitioner “must demonstrate a clear and indisputable right to the issuance of the
writ, amounting to a clear abuse of discretion or a usurpation of judicial power”);
Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005) (holding that
the district court had discretion to consider an issue first raised in reply papers);
Keefe ex rel. Keefe v. Shalala, 71 F.3d 1060, 1066 n.2 (2d Cir. 1995) (“Normally,
we will not consider arguments raised for the first time in a reply brief.”); United
States v. DiStefano, 464 F.2d 845, 850 (2d Cir. 1972) (“[M]ere error, even gross
error in a particular case, as distinguished from a calculated and repeated disregard
of governing rules, does not suffice to support issuance of the writ.”).
Mandate, In Re: Luis Batista, No. 16-2876 (2d Cir. Dec. 2, 2016), ECF No. 25. Therefore, the
Court need not even address this issue. Nonetheless, the Court will proceed to explain why it finds
no merit in Petitioner’s argument concerning Mr. Ricco’s electronic signature.
In addition to the requirements squarely discussed in the August 31 Order, 28 U.S.C.
§ 1746 also requires an actual signature from the declarant. See LeBoeuf, Lamb, Greene &
MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65 (2d Cir. 1999) (setting forth requirements of § 1746);
Dilworth v. Goldberg, 2014 WL 3798631, at *1 (S.D.N.Y. Aug. 1, 2014) (requiring a signature on
a verified statement to satisfy § 1746). Under the local rules of this district, an electronic signature
of an attorney is considered authentic if filed using the attorney’s Electronic Case Filing (“ECF”)
https://img.nyed.uscourts.gov/files/local_rules/localrules.pdf (“A paper served and filed by
electronic means in accordance with [the Court’s ECF] instructions is, for purposes of Fed. R. Civ.
P. 5, served and filed in compliance with the Local Civil Rules of the Southern and Eastern
Districts of New York.”); E.D.N.Y. cm/ECF User’s Guide at 3, 4, available at
https://img.nyed.uscourts.gov/files/forms/ecf-usermanual.pdf (“Your login and password are your
electronic signature.”) (emphasis omitted).
Here, although Mr. Ricco’s initial declaration was not filed on the docket using his ECF
credentials, other factors provide sufficient assurances of authenticity. First, Mr. Ricco submitted
his affidavit as a .pdf attachment from his professional email address to this Court’s case manager
and courtroom deputy. (See Declaration of Anthony Ricco, Esq., Dkt. Entry No. 12 (“First Ricco
Declaration”).) He sent his submission via email only after attempting to file it via ECF and
encountering technical difficulties. Moreover, Mr. Ricco followed up his email submission by
sending a courtesy copy to this Court’s chambers along with a cover letter bearing the letterhead
of Mr. Ricco’s law firm. Given the declaration was sent via both Mr. Ricco’s law firm’s email
account and a letter bearing his firm’s letter head, the Court has no reason to doubt that the
declaration was made by Mr. Ricco, and Petitioner has not offered one.
Second, Ricco submitted a second declaration—this time through the ECF system using
his username and password—that expressly references the First Ricco Declaration.
Declaration of Anthony Ricco, Esq., at 4, Dkt. Entry No. 48 (“Second Ricco Declaration”) (“As
stated in my declaration of June 29, 2014, Luis Batista was, in fact, informed of the benefits of
accepting a guilty plea in this case and consequences of proceeding to trial by both James
Moschella and myself.”).) This reference, which was contained in a declaration submitted through
ECF thereby fully complying with the signature requirements of § 1746, implicitly confirms the
authenticity of the First Ricco Declaration.
Therefore, the Court is satisfied that the authenticity requirements of 28 U.S.C. § 1746
have been satisfied as to the First Ricco Declaration. As a result, the Motion for Reconsideration
Motion to Strike
In the Motion to Strike, Petitioner asks the Court to disregard statements made in the
affidavits that either: (i) exceed the scope of the discovery sought by Petitioner and the August 31
Order, or (ii) are “questionable.” (Mot. to Strike at 2.) Tellingly, however, at no point in the
motion does Petitioner identify any portion of any affidavit that he proposes to strike. (See
generally Id.) 2 Instead, Petitioner uses the Motion to Strike to make a not-so-veiled attack on the
August 31 Order itself, which he complains did not give Petitioner what he wanted, but provided
only for the production of “self-serving affidavits limited to the recollection of events that
transpired over seven years ago.” (Id.) Petitioner also argues that, “by ordering the Government
and Petitioner’s former trial counsel (whom are Government witnesses in this action), to file
affidavits, in lieu of turning over the relevant documents, it is Petitioner’s position that the Court
Petitioner only objects generally to (i) “self-serving statements supporting the Government’s claims that
Petitioner’s trial counsel . . . were not ineffective in handling plea offers,” and (ii) statements that are “unsupported
recollections” without reference to any documents. (Id. at 2, 3.) As the statements made by Petitioner’s trial counsel
regarding their “handling [of] plea offers” is directly responsive to the August 31 Order, the Court declines to strike
these statements. Moreover, as discussed herein, Petitioner’s trial counsel has represented that they do not possess
the documents Petitioner seeks, and the Court has no reason to doubt those representations.
afforded the Government an unwarranted opportunity to submit evidence and arguments to which
the Government was not entitled, under the August 31, 2016 Order.” (Id.)
These arguments not only are inapt for a motion to strike, but would hold no weight in any
context. As an initial matter, by calling the Court’s action “unwarranted,” Petitioner clearly seeks
to revisit the scope of the discovery ordered by the Court through the August 31 Order. (See Mot.
to Strike at 2.) The appropriate vehicle for such an argument is not a motion to strike, but rather a
motion for reconsideration; notably, the Motion for Reconsideration at issue in this Memorandum
& Order did not present this argument, and, therefore, Petitioner has waived it. Moreover, the
implication raised by Petitioner that the government somehow received something to which it was
not entitled does not make sense because the August 31 Order expressly provided for Petitioner’s
attorneys to provide certain information, which they did. It is of no significance that the attorneys’
statements happen to support the government’s position in this action.
The Court notes that, even if it were to reconsider the scope of the August 31 Order,
Petitioner has not articulated what additional relief he seeks. On the one hand, Petitioner notes
that he originally sought “documents related to any pleas offered to Petitioner,” and implies that
the August 31 Order should have done more to provide Petitioner with documents he believes
exist. (Mot. to Strike at 2.) However, Petitioner also acknowledges that his trial attorneys “both
have previously admitted to not being in possession of any records concerning the plea” (Id. at 3),
and offers no information about what additional documents may exist. Given Plaintiff’s trial
counsel’s attestations and Petitioner’s failure to identify what additional discovery might exist to
support his Petition, the Court finds that that scope of the August 31 Order was appropriate. The
Court will not entertain any additional requests for discovery absent new and extremely compelling
For these reasons, the Court finds that Petitioner has failed to show good cause for striking
any portion of any of the affidavits submitted in response to the August 31 Order. Accordingly,
the Motion to Strike is denied.
Motion for Leave to Amend the Petition
Finally, Petitioner seeks leave to amend his petition, or alternatively, to file a motion
pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence based on Amendment 794 of the
U.S.S.G. See Amendment 794, 2016 U.S.S.G., Appx. C. Amendment 794, which became
effective on November 1, 2015, when the Petition was pending, revised the commentary associated
with § 3B1.2 of the U.S.S.G. concerning whether a criminal defendant is entitled to a decrease in
his guideline offense level based on a mitigating role in the offense of conviction. Id. Petitioner
appears to support his argument that Amendment 794 applies to him by pointing to the decision
of a district court in this Circuit that held that Amendment 794 should apply retroactively. (Mot.
for Leave at 1 (citing United States v. Perez, 2016 WL 4775536 (S.D.N.Y. Sept. 14, 2016).) In
Perez, a court considering a § 3582(c)(2) claim based on Amendment 794 found that “[i]t appears
. . . that [Amendment 794] should be given retroactive effect,” because, among other things, the
amendment “revises the commentary, which is more consistent with a clarification than a
substantive change” to the guidelines. Perez, 2016 WL 4775536, at *3 (citing United States v.
Mapp, 990 F.2d 58, 61 (2d Cir. 1993)).
U.S.S.G. § 3B1.2 allows for a court to reduce a guideline offense level by 2, 3, or 4 points
for a defendant “who plays a part in committing the offense that makes him or her ‘substantially
less culpable than the average participant.’” Amendment 794 (quoting U.S.S.G. § 3B1.2). While
Amendment 794 does not change anything about the text of § 3B1.2 itself, it adds to the section’s
commentary a “non-exhaustive list of factors” a court is to consider in determining whether to
make a sentencing adjustment due to a mitigating role. Id. The amendment notes that it was
adopted in order to a resolve a split among the circuits as to whether a court should consider a
defendant’s conduct as compared to the average participant in the entire universe of persons
participating in similar crimes, or only to the average participant in the crime the defendant was
convicted of committing. Id. The amendment aligned the U.S.S.G. with the approach previously
taken by the Seventh and Ninth Circuits in favor of that taken by the First and Second Circuits.
Id. Specifically, while the First and Second Circuits previously permitted a district court to
compare the “average participant” in § 3B1.2 to “the universe of persons participating in similar
crimes,” Id. (citing United States v. Santos, 357 F.3d 136, 142 (1st Cir. 2004); United States v.
Rahman, 189 F.3d 88, 159 (2d Cir. 1999)), following the amendment, the U.S.S.G. “generally
adopts the approach of the Seventh and Ninth Circuits, revising the commentary to specify that,
when determining mitigating role, the defendant is to be compared with the other participants ‘in
the criminal activity.’” Id. The amendment further notes that “[f]ocusing the court’s attention on
the individual defendant and the other participants is more consistent with the other provisions of”
the U.S.S.G. that consider the defendant’s role in an offense. Id.
At the time when this Court sentenced Petitioner, the law of this Circuit clearly permitted
the Court to compare Petitioner’s conduct to both the others involved in the drug scheme in which
he participated and the universe of all others convicted of participating in similar offenses. Indeed,
when the Court issued its decision on whether a mitigating role adjustment was warranted, United
States v. Batista, 732 F. Supp.2d 82, 86-90 (E.D.N.Y. 2010), aff’d sub nom. United States v.
Hiciano, 680 F.3d 239 (2d Cir. 2012), withdrawn from bound volume, and aff’d, 684 F.3d 333 (2d
Cir. 2012), the Court quoted the prevailing Second Circuit interpretation of § 3B1.2, noting that
“the defendant’s conduct must be minor or minimal as compared to the average participant in such
a crime. Accordingly, the fact that a defendant played a minimal or minor role in his offense visa-vis the role of his co-conspirators is insufficient, in and of itself, to justify a mitigating role
reduction.” Id. at 86 (quoting United States v. Carpenter, 252 F.3d 230, 235 (2d Cir.2001)
(emphasis added in Batista; internal quotation marks, citations, and alterations from Carpenter
However, although Amendment 794 may have changed this standard, Defendant is not
entitled to a reassessment of the Court’s application of § 3B1.2 unless the Sentencing Commission
intended for Amendment 794 to apply retroactively. On this point, Defendant notes that the court
in Perez ruled that the amendment should apply retroactively. Perez, 2016 WL 4775536, at *3.
Petitioner fails to note, however, that a day before Petitioner filed the Motion for Leave, the district
judge in Perez changed course and ruled in a different case that the U.S.S.G. “Manual lists the
amendments that the Sentencing Commission has decided shall be applied retroactively, and
Amendment 794 is not listed. U.S.S.G. § 1b1.10(d). Therefore, the Court has no authority to
reduce Morales’ sentence under § 3582(c)(2).”
United States v. Morales-Perez, 2016 WL
6426394, at *2 (S.D.N.Y. Oct. 27, 2016). The court also noted that a Ninth Circuit opinion on
which the defendant relied was inapposite because it addressed the amendment in the context of a
direct appeal. Id. (distinguishing United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir.
2016)). On December 19, 2016, the court in the Perez ultimately denied the petitioner’s motion
“for the reasons explained in United States v. Morales-Perez.” United States v. Perez, 2016 WL
7742745 (S.D.N.Y. Dec. 19, 2016).
Therefore, because (i) the only authority Petitioner relies on to support the Motion for
Leave has been overruled, and (ii) it is clear to this Court, as it was ultimately to the court in Perez
and Morales-Perez, that the Sentencing Commission did not intend Amendment 794 to apply
retroactively, Petitioner is not entitled to relief on this basis.
Finally, and importantly, at
sentencing, this Court determined for a number of reasons that Petitioner was not entitled to either
a minimal or minor role reduction. The reasons were set forth in this Court’s August 9, 2010
Opinion and Order, explaining the Court’s sentence and rulings on the parties’ objections to the
Presentence Report. See Batista, 732 F. Supp.2d 82. Accordingly, the Motion for Leave is
For the reasons set forth above, the Motions are denied.
Dated: Brooklyn, New York
August 25, 2017
DORA L. IRIZARRY
The Court notes that although it cannot say definitively that its determination would not have changed had
Amendment 794 been in effect at the time of Petitioner’s sentencing, the Court’s analysis of § 3B1.2’s application to
Petitioner did not rely on a comparison to other drug schemes, but rather on Petitioner’s culpability as compared with
that of his co-conspirators. Batista, 732 F. Supp. 2d at 86-90. Indeed, the Court’s discussion of this issue consists
almost entirely as to Petitioner’s conduct compared to that of other key members of Virgillio Hiciano’s narcotics
organization. Id. Therefore, the Court finds it unlikely that its conclusion regarding mitigation would have changed
had the amendment to § 3B1.2’s commentary been in effect at the time of sentencing.
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