Donato v. United States of America

Filing 5

MEMORANDUM & ORDER TRANSFERRING CASE AS SUCCESSIVE PETITION - This Court transfers this case to the US Court of Appeals for the Second Circuit. For the foregoing reasons, the Clerk of the Court is ORDERED to transfer this Petition to the United State Court of Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631 and to mark this matter CLOSED. If the Second Circuit authorizes Petitioner to proceed in this matter, Petitioner shall move to reopen this case under this docket number, 14-CV-7393(JS). So Ordered by Judge Joanna Seybert on 8/5/2015. C/M (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
CARLO DONATO,
Petitioner,
-against-

MEMORANDUM & ORDER
14-CV-7393(JS)

UNITED STATES OF AMERICA,

Respondent.
----------------------------------X
APPEARANCES
For Plaintiff:
Carlo Donato, pro se
4257-053
Allenwood U.S. Penitentiary
P.O. Box 3000
White Deer, PA 17887
For Defendant:

No appearance

SEYBERT, District Judge:
Pro
“Donato”),

se

petitioner

currently

Carlo

incarcerated

Donato
at

the

(“Petitioner”
Allenwood

or
U.S.

Penitentiary, has filed his third Petition for a Writ of Habeas
Corpus in this Court.1

Given that the present Petition is an

unauthorized successive habeas petition, the Court sua sponte
determines

that

it

lacks

jurisdiction

to

adjudicate

it.

Accordingly, in the interests of justice, the Clerk of the Court is

1

Donato v. U.S., No. 98-CV-2452 (E.D.N.Y. Mar. 28, 1998)
(Section 2255 Petition dismissed by Order dated July 8, 1998,
Mishler, D.J.), affirmed in part and remanded in part by, Donato
v. U.S., 208 F.3d 202 (2d Cir. 2000); Donato v. U.S., No. 06-CV5287 (E.D.N.Y. Sept. 27, 2006) (Section 2255 Petition, converted
from Section 2241, dismissed by Order dated May 7, 2014, Seybert,
D.J.), appeal dismissed by Mandate, dated Jan. 14, 2015, because
Petitioner/Appellant had not made a “substantial showing of the
denial of a constitutional right.” (See Jan. 14, 2015 Mandate,
No. 06-CV-5287, Docket Entry 29.)

directed to transfer the Petition to the United States Court of
Appeals for the Second Circuit.
BACKGROUND
Petitioner was arrested on February 15, 1995, pursuant to
a warrant, after a year-long joint investigation by the FBI, New
York

Police

Department,

and

Nassau

County

Police

Department.

(May 7, 2014 Mem. & Order, No. 06-CV-5287 (“May 2014 Order”),
Docket Entry 26 at 1-2.)

This investigation regarded a series of

armed carjackings that had
and 1994.
citation

occurred in Nassau County during 1993

(May 2014 Order at 1-2) (internal quotation marks and
omitted.)

At

Petitioner’s

trial,

the

government

presented, inter alia, twenty-two witnesses including the seven
victims of the carjackings, three eyewitnesses, an informant,
several law enforcement officials, and automobile executives.
(May 2014 Order at 2) (internal quotation marks and citation
omitted.)
On May 29, 1996, at the conclusion of a jury trial,
Petitioner was found guilty of: (1) one count of Conspiracy to
Commit Carjacking, in violation of 18 U.S.C. § 371; (2) six counts
of Carjacking, in violation of 18 U.S.C. § 2119; and (3) six counts
of Use of a Firearm during the Commission of a Crime of Violence,
in violation of 18 U.S.C. § 924(c).

(May 2014 Order at 2.)

Petitioner was sentenced to 119 years incarceration and three years
of supervised release, fined in the amount of $175,000, and ordered
2

to pay restitution in the amount of $295,807.25.
at 2.)

(May 2014 Order

Petitioner appealed the conviction to the Second Circuit

Court of Appeals, which, on April 23, 1997, affirmed the judgment.
See United States v. Donato, 112 F.3d 506 (2d Cir. 1997).
On March 28, 1998, Petitioner filed a Petition for a Writ
of Habeas Corpus (the “1998 Petition”) pursuant to 28 U.S.C.
§ 2255, arguing, among other things, that he was denied effective
assistance of counsel.

See Donato v. U.S., No. 98-CV-2452(JM).

The 1998 Petition was denied and Petitioner appealed. (See July 8,
1998 Order, No. 98-CV-2452, Docket Entry 10; No. 98-CV-2452, Notice
of Appeal, Docket Entry 13.)

On appeal, the Second Circuit

affirmed the denial of Petitioner’s Section 2255 petition in part
and remanded it in part.
2000).

Specifically,

Donato v. U.S., 208 F.3d 202 (2d Cir.

Petitioner’s

ineffective

assistance

of

counsel claims were denied and the Second Circuit remanded the case
to the District Court for re-sentencing based on a possible
sentence calculation error.

Donato, 208 F.3d at 203.

After

Petitioner’s sentence was recalculated, the Court re-sentenced
Petitioner to 115 years incarceration, the rest of his sentence
remained unchanged.

(See Calendar Entry, No. 95-CR-0223, Docket

Entry 105; Am. J., No. 95-CR-0223, Docket Entry 106.)
again appealed.

Petitioner

The Second Circuit affirmed the District Court’s

judgment, but remanded the case solely for the purpose of either
amending the fine to fit within the Sentencing Guidelines range or
3

imposing a fine above the Guidelines range with an explanation for
the departure.
Cir. 2002).

See United States v. Quintieri, 306 F.3d 1217 (2d

On July 6, 2005, the District Court vacated the fine

originally imposed and denied Petitioner’s application to re-open
his entire sentence.
Entry 125.)

(See Calendar Entry, No. 95-CR-0223, Docket

Petitioner appealed the judgment, which the Second

Circuit affirmed. (See Mandate, No. 95-CR-0223, Docket Entry 132.)
On September 27, 2006, Petitioner filed another Petition
for a writ of habeas corpus.

There, Petitioner asserted the

following grounds: (1) Petitioner was denied his due process rights
and his right to effective assistance of counsel because he was not
provided with an interpreter; (2) Petitioner was denied his due
process and effective assistance of counsel rights when he was resentenced while overly-medicated at his December 1, 2000 resentencing; and (3) the evidence was legally insufficient to
convict him.
the

Court

(See May 2014 Order at 3-4.)
denied

Petitioner’s

On February 11, 2010,

“overly-medicated”

claim

and

transferred his remaining claims to the Second Circuit finding that
they constituted a second or successive habeas petition.

(See

Feb. 11, 2010 Mem. & Order, No. 06-CV-5287, Docket Entry 17.)
On March 3, 2010, the Second Circuit issued a Mandate
denying the Petition insofar as it sought to challenge Petitioner’s
conviction and aspects of his sentence that were not amended by the
re-sentencing.

(See March 3, 2010 Mandate, 06-CV-5287 (“Mar. 2010
4

Mandate”), Docket Entry 18.)

The Mar. 2010 Mandate further

instructed Petitioner to seek leave from the District Court to
amend his then-pending 2255 Petition to include a claim alleging
that the denial of an interpreter during the proceedings held after
his first 2255 Petition was granted was unconstitutional.
Mar. 2010 Mandate.)

(See

On October 1, 2013, the Second Circuit issued

another Mandate in response to Petitioner’s request for an order
authorizing the District Court to consider a successive 2255
motion.

(See

Oct.

1,

2013

Mandate”), Docket Entry 23.)

Mandate,

06-CV-5287

(“Oct.

2013

The Second Circuit denied this

request, finding that it was unnecessary because “later decisions
of the Supreme Court and this Court make clear that none of
Petitioner’s claims in his § 2241 petition were successive.”
Oct. 2013 Mandate.)

(See

Accordingly, Petitioner’s 2255 motion was

remanded to this Court.

(See Oct. 2013 Mandate.)

On November 22, 2013, Petitioner filed a motion to amend
to add a claim of actual innocence and the Court granted that
motion.

(See March 10, 2014 Mem. & Order, No. 06-CV-5287, Docket

Entry 24.)

On May 7, 2014, Petitioner’s application for a writ of

habeas corpus pursuant to 2255 was denied in its entirety.2
May 2014 Order.)

(See

Petitioner appealed and his appeal was denied on

2

The Petition raised the following grounds for relief: (1)Denial
of due process and effective assistance of counsel because
Petitioner was not provided an interpreter; (2) Actual Innocence;
(3) Trial evidence was legally insufficient to convict
Petitioner; and (4) Ineffective assistance of counsel.
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January 14, 2015.

(See Jan. 14, 2015 Mandate, No. 06-CV-5287,

Docket Entry 29.)

On December 11, 2014, Petitioner filed the

instant application for a writ of habeas corpus pursuant § 2241,
again alleging an actual innocence claim.
DISCUSSION
As a threshold matter, the proper avenue for challenging
the constitutionality of the imposition of a federal conviction or
sentence is by motion pursuant to § 2255.

District courts lack

jurisdiction to consider second or successive § 2255 motions unless
the movant has obtained authorization from the appropriate court of
appeals.

Carmona v. U.S., 390 F.3d 200, 201-02 (2d Cir. 2004).

Although a petition pursuant to § 2241 is the proper means to
challenge the execution of a federally-imposed sentence, Adams v.
U.S., 372 F.3d 132, 134-35 (2d Cir. 2004), a federal prisoner may
also challenge the validity of his conviction under § 2241 if he
establishes that § 2255 is “inadequate or ineffective to test the
legality of his detention.”

28 U.S.C. § 2255(e); Cephas v. Nash,

328 F.3d 98, 104 (2d Cir. 2003).

However,

when a prisoner files a § 2241 petition in an
attempt to evade § 2255’s limits on second or
successive petitions, and when the petitioner
has already had a prior § 2255 petition
dismissed on the merits . . . , the district
court can treat the § 2241 petition as a
second or successive § 2255 petition and refer
the petition to this court for certification .
. . .
Adams, 372 F.3d at 136.

Upon careful review of the instant
6

Petition together with the underlying procedural history of this
case,

it

is

apparent

that

the

Petition

is

an

unauthorized

successive habeas motion over which this Court lacks jurisdiction.
see Torres v. Senkowski, 316 F.3d 147, 151 (2d Cir. 2003) (The
Antiterrorism and Effective Death Penalty Act of 1996 “allocates
jurisdiction to the courts of appeals, not the district courts, to
authorize successive habeas motions or applications.”). Therefore,
Petitioner must move in the United States Court of Appeals for the
Second Circuit for permission to pursue this successive Petition
for habeas corpus relief.

28 U.S.C. § 2244(b)(3)(A).

Accordingly, in the interest of justice, the Clerk of the
Court shall transfer this Petition to the United States Court of
Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631.
Torres, 316 F.3d at 151-52 (citing Liriano v. U.S., 95 F.3d 119,
121-23 (2d Cir. 1996) (per curiam)).

THIS ORDER CLOSES THIS CASE.

If the Circuit authorizes Petitioner to proceed in this matter, he
shall move to reopen under this docket number, 14-CV-7393(JS).

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CONCLUSION
For the foregoing reasons, the Clerk of the Court is
ORDERED to transfer this Petition to the United State Court of
Appeals for the Second Circuit pursuant to 28 U.S.C. § 1631 and to
mark

this

matter

CLOSED.

If

the

Second

Circuit

authorizes

Petitioner to proceed in this matter, Petitioner shall move to reopen this case under this docket number, 14-CV-7393(JS).

SO ORDERED.

/s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

August
5 , 2015
Central Islip, New York

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