Sealed Defendant 6 v. USA

Filing 24

MEMORANDUM AND ORDER. For the foregoing reasons, Patterson's motion to disregard two claims (No. 275 in 06 Cr. 80) is granted, and Patterson's Rule 60 Motion (No. 256 in 06 Cr. 80) is denied. IT IS SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 8/25/2015). Copies Mailed By Chambers. (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
ANTHONY PATTERSON,
Petitioner,

MEMORANDUM AND ORDER

- against -

06 Cr. 80 (NRB)
10 Civ. 9542 (NRB)

UNITED STATES OF AMERICA,
Respondent.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

Anthony Patterson, pro se, moves pursuant to Rule 60 of the
Federal

Rules

of

Civil

Procedure

for

relief

from

orders

resentencing him in his criminal case and denying his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

After

Patterson was sentenced in 2008, he successfully appealed his
sentence on the basis of a Second Circuit case decided in 2009.
But before Patterson was resentenced, the Supreme Court decided
a case that abrogated the Second Circuit’s 2009 decision, and
Patterson’s original sentence was reimposed on remand without
contemporaneous objection or appeal.

For the following reasons,

Patterson’s motion, a belated attempt to get the benefit of his
original appeal, is denied.

I. BACKGROUND
Following
Patterson

was

a

jury

convicted

trial
of

in
two

February
felonies

and

March

arising

from

2008,
his

participation as “enforcer” in the John Shop Crew, a multimillion

dollar

drug

conspiracy:

Count

One,

conspiracy

to

distribute and possess with intent to distribute 1,000 kilograms
and

more

of

marijuana,

in

violation

of

21

U.S.C.

§§ 812,

841(a)(1), 841(b)(1)(A), and 846; and Count Two, possession of a
firearm in furtherance of the Count One conspiracy, in violation
of 18 U.S.C. § 924(c).

Because the Government filed a prior

narcotics felony information before trial, Count One carried a
twenty-year

mandatory

§§ 841(b)(1)(A), 851.

minimum

sentence.

See

21

U.S.C.

Count Two carried a five-year mandatory

minimum sentence, not to be imposed concurrently with any other
term

of

(D)(ii).

imprisonment.

See

18

U.S.C.

§§ 924(c)(1)(A)(i),

On July 21, 2008, sentence was imposed.

Although a

Guidelines sentence would have been in the range of 420 months
(35 years) to life in prison, the Court imposed the mandatory
minimum sentence of 20 years’ imprisonment on Count One and 5
years’ imprisonment on Count Two, to be served consecutively, as
required by statute.
On

appeal,

the

Second

Circuit

affirmed

Patterson’s

conviction but vacated his sentence in light of a Second Circuit
case, decided after Patterson was sentenced, which had held that
“the mandatory minimum sentence under Section 924(c)(1)(A) is
. . . inapplicable where the defendant is subject to a longer
mandatory minimum sentence for a drug trafficking offense that

2

is part of the same criminal transaction or set of operative
facts as the firearm offense.”

United States v. Williams, 558

F.3d 166, 168 (2d Cir. 2009).

The Government conceded that

Patterson had to be resentenced under Williams but urged the
Second Circuit to defer judgment until the Supreme Court decided
cases on its docket presenting the same legal issue.

The Second

Circuit declined to wait and instead ordered resentencing.

See

United States v. Barris, 377 F. App’x 93, 96 (2d Cir. 2010)
(summary order).

Nonetheless, on June 10, 2010, the Second

Circuit granted a Government motion to stay the issuance of its
mandate for 90 days.

The final mandate did not issue until

October 25, 2010.1
On November 15, 2010, the Supreme Court abrogated Williams
by

holding

consecutive
spared

from

that

“[a]

sentence
that

defendant
for

a

sentence

is

subject

§ 924(c)
by

to

a

conviction,

virtue

of

mandatory,
and

receiving

a

mandatory minimum on a different count of conviction.”
v. United States, 562 U.S. 8, 13 (2010).
the

Supreme

Court

further

confirmed

is

not

higher
Abbott

On November 29, 2010,
that

the

Williams

interpretation of § 924(c) had been erroneous by vacating the
Second Circuit’s judgment in Williams itself in light of Abbott.
See United States v. Williams, 131 S. Ct. 632 (2010) (mem.).

1

Judicial notice is taken of the dockets of Patterson’s cases in the
Second Circuit.

3

The

Second

Circuit’s

rationale

for

vacating

Patterson’s

sentence was now legally invalid, and it was clear under Abbott
that

Patterson

Thus,

it

became

had

necessary

original sentence.
Vivian

Shevitz,

absentia.

received

the

on

mandatory

remand

minimum

simply

to

sentence.

reimpose

the

Initially, Patterson’s appellate counsel,

Esq.,

consented

to

resentencing

Patterson

in

(See Transcript of May 24, 2011 proceeding (“Tr.”) at

13:7-14:8.)

Accordingly, on January 11, 2011, the Court issued

an order reimposing Patterson’s original sentence in light of
Abbott.

(Crim. Doc. No. 192.)2

However, the Court soon received

a letter from Patterson himself objecting to this manner of
proceeding.

Accordingly,

Patterson

was

transported

to

this

District and on May 24, 2011, sentence was reimposed in open
court.3

(Tr. 14:13-19.)

proceeding.

(See id. at 2:4-9.)

his right to appeal.
In

Shevitz represented Patterson at that

the

The Court advised Patterson of

(Id. at 19:12-14.)

meantime,

on

December

He did not appeal.

13,

2010,

Patterson

had

submitted a pro se habeas petition pursuant to 28 U.S.C. § 2255,
in which he contended that his trial counsel, Jeffrey Lichtman,
Esq.,
plea

had

provided

negotiations.

ineffective
At

the

May

2

assistance
24,

2011

in

connection

hearing,

the

with
Court

Citations to “Crim. Doc. No.” refer to docket entries in Patterson’s
criminal case, No. 06 Cr. 80 (NRB). Citations to “Habeas Doc. No.” refer to
docket entries in Patterson’s habeas case, No. 10 Civ. 9542 (NRB).
3
Notwithstanding a contrary statement in the Government’s opposition to
the instant motion, the transcript reflects that Patterson was present in
court on May 24, 2011. (See Tr. 18:21-19:16.)

4

granted

Shevitz’s

application

to

represent

Patterson

in

connection with the habeas petition.

(See Tr. 2:15-17, 7:12,

10:9-10.)

were

Supplemental

Patterson

himself,

and

submissions
the

Government.

made

by

Shevitz,

Patterson’s

pro

se

supplemental submissions raised an additional issue of whether
Russell

Paisley,

Lichtman

did,

disclosing

Esq.,

who

rendered

incriminating

to

represented

ineffective

Paisley’s other clients.
Shevitz

had

Patterson

assistance

information

of

about

before

counsel

by

Patterson

to

Although the Court declined to appoint

represent

Patterson

in

concerning

Paisley,

Shevitz

nonetheless

submissions,

including

a

letter,

7-page

connection

with

the

made

addressing

claim

several
it.

September 5, 2012, the petition as supplemented was denied.

On
See

Patterson v. United States, Nos. 06 Cr. 80 and 10 Civ. 9542,
2012 WL 3866489 (S.D.N.Y. 2012) (“Patterson I”).
On September 10, 2012, Patterson sent a pro se letter to
the Court, further discussed in Part III.B below.

The letter

contained the docket numbers of both his criminal and habeas
cases, and was construed as a notice of appeal.

(Crim. Doc. No.

211;

Second

Habeas

Doc.

No.

14.)

A

review

of

the

Circuit

dockets shows (A) that the Second Circuit opened two appellate
cases (Nos. 12-3933 and 12-3945 in that court), but dismissed
one (No. 12-3945) on the grounds that it was “duplicative”; (B)
that

the

Second

Circuit

treated

5

the

remaining

appeal

as

a

challenge

to

the

decision

in

habeas

case,

rather

than

Patterson’s criminal case; and (C) that Patterson, who addressed
several pro se submissions to the Second Circuit, objected to
neither

the

dismissal

of

the

duplicative

appeal

nor

the

characterization of the remaining appeal as involving his habeas
case.

On May 15, 2013, the Second Circuit denied Patterson’s

motions for a certificate of appealability and for appointment
of counsel and dismissed Patterson’s appeal on the ground that
he had not made a “substantial showing of the denial of the
denial of a constitutional right.”
Doc. No. 20.)

(Crim. Doc. No. 247; Habeas

On October 7, 2013, the Supreme Court denied

Patterson’s petition for a writ of certiorari.

Patterson v.

United States, 134 S. Ct. 325 (2013) (mem.).
On August 13, 2014, Patterson filed a pro se motion in his
criminal case4 styled “Motion to Vacate Pursuant to Fed. R. Civ.
P. Rule 60(b) and Rule 60(a)” (the “Rule 60 Motion”), which is
now before the Court.

(Crim. Doc. No. 256.)

On December 5,

2014, the Government filed a memorandum in opposition.
Doc. No. 265.)
reply.

(Crim.

On December 23, 2014, Patterson submitted a

(Crim. Doc. No. 266.)

Subsequently, on March 16, 2015,

Patterson submitted a letter citing supplemental authority; on
May 6, 2015, Patterson submitted a supplemental brief; and on

4

Although Rule 60 is a civil rule with no applicability in criminal
proceedings, the motion has been liberally construed as though it had been
filed in Patterson’s habeas case.

6

June 1, 2015, Patterson submitted a motion to disregard two of
the claims in the Rule 60 Motion.

(Crim. Doc. Nos. 272, 274,

275.)5

II. LEGAL STANDARD
Rule 60(b) of the Federal Rules of Civil Procedure permits
a court to order relief from a final judgment or order on “just
terms” on the basis of:
(1) mistake,
excusable neglect;

inadvertence,

surprise,

or

(2) newly
discovered
evidence
that,
with
reasonable diligence, could not have been discovered
in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic
or extrinsic), misrepresentation, or misconduct by an
opposing party;
(4)

the judgment is void;

(5) the judgment has been satisfied, released,
or discharged; it is based on an earlier judgment that
has
been
reversed
or
vacated;
or
applying
it
prospectively is no longer equitable; or
(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b).

Rule 60(b) motions “are addressed to the

sound discretion of the district court and are generally granted
only upon a showing of exceptional circumstances.”

Mendell ex

rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir. 1990),

5

Patterson also submitted a motion to recuse, which the Court denied in
a November 20, 2014 Order. (Crim. Doc. Nos. 262, 263; Habeas Doc. No. 23.)

7

aff’d, 505 U.S. 115 (1991).

A motion under Rule 60(b) must be
Fed. R. Civ. P. 60(c)(1).6

made “within a reasonable time.”
In

the

habeas

context,

“relief

under

Rule

60(b)

is

available for a previous habeas proceeding only when the Rule
60(b)

motion

proceeding

attacks

rather

than

the

integrity

the

of

underlying

the

previous

criminal

habeas

conviction.”

Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004); see
also Gonzalez v. Crosby, 545 U.S. 524, 532 (2005); Rodriguez v.
Mitchell, 252 F.3d 191, 198-99 (2d Cir. 2001).

If a purported

Rule 60(b) motion attacks the underlying criminal proceedings, a
district court has two procedural options:

The court may (1)

recharacterize the Rule 60(b) motion as a new habeas petition
(which, if it is “second or successive,” should be transferred
to the Second Circuit for possible certification), or (2) deny
the portion of the motion attacking the underlying conviction as
beyond the scope of Rule 60(b).

See Gitten v. United States,

311 F.3d 529, 534 (2d Cir. 2002); Adams v. United States, 155
F.3d 582, 584 (2d Cir. 1998) (per curiam).

III. DISCUSSION
We

construe

Patterson’s

motion

Patterson’s
to

pro

disregard

6

se

the

submissions
fourth

and

liberally.

sixth

claims

Additionally, motions under Rules 60(b)(1), (2), and (3) must be made
within a year. See Fed. R. Civ. P. 60(c)(1).

8

advanced in his Rule 60 Motion is granted.

Liberally construed,

the remaining claims are as follows:


Claim One:

That this Court overlooked Patterson’s notice

of

to

appeal

resentencing,

the
and

extent

failed

that

to

it

forward

applied
it

to

to

the

his

Second

Circuit.


Claim Two:

That Shevitz was conflicted from serving as

counsel in both Patterson’s criminal case on remand and
Patterson’s habeas case.


Claim Three:

That this Court erred in reimposing the

original sentence on remand, in violation of the Ex Post
Facto Clause of the Constitution.


Claim Five:
Second

That this Court was in “contempt” of the

Circuit

for

failing

to

resentence

Patterson

pursuant to the Second Circuit’s mandate.


Supplemental

Claim:

That

the

reimposed

sentence

was

unreasonable and violated Patterson’s due process rights
and his reasonable expectations following his partially
successful appeal to the Second Circuit.7
Patterson

seeks

imprisonment

and

to
to

be

resentenced

vacate

the

to

a

judgment

twenty-year
denying

his

term

habeas

petition.

7

This claim is made in Patterson’s May 6, 2015 supplemental brief.

9

of

Patterson cites both Rule 60(b), which is discussed in Part
II

above,

and

Procedure.

Rule

60(a)

of

the

Federal

Rules

of

Civil

As a preliminary matter, Patterson’s reliance on

Rule 60(a), which permits a court to “correct a clerical mistake
or a mistake arising from oversight or omission,” is unavailing,
because Patterson seeks new substantive relief.

See Hodge ex

rel. Skiff v. Hodge, 269 F.3d 155, 158 (2d Cir. 2001) (“A motion
under Rule 60(a) is available only to correct a judgment for the
purpose

of

reflecting

accurately

a

decision

that

the

court

actually made.” (internal quotation marks omitted)); 12 Moore’s
Federal Practice § 60.02[1] (3d ed., 2015 rev.) (“Rule 60(a) may
not be used to open up a judgment for the purpose of correcting
substantive errors, or for the purpose of making rulings that
should have been but that were not actually made.”).
Because

only

Claim

Two

relates

to

the

integrity

of

Patterson’s habeas proceeding, we address it first and then turn
to the remaining claims.

A.

Claim Two
In

Claim

Two,

Patterson

contends

that

Shevitz

was

conflicted from serving as counsel in both his criminal case on
remand and his habeas petition.
conflict

of

interest

is

that

The gravamen of the supposed
Shevitz

provided

ineffective

assistance of counsel, principally by failing to file a notice

10

of appeal from resentencing,8 and thus the habeas petition should
have been expanded to encompass Shevitz’s failings.

To the

extent that Claim Two attacks the integrity of the proceedings
in

Patterson’s

habeas

case,

it

fails

for

the

following

two

reasons.
First, the motion is not made “within a reasonable time.”
Fed. R. Civ. P. 60(c)(1).

“To determine whether the [movant]

has filed [a] Rule 60(b) motion within a ‘reasonable time,’ the
Court ‘must scrutinize the particular circumstances of the case,
and

balance

delay.’”

the

interest

Carbone

v.

in

finality

Cunningham,

857

with
F.

the

Supp.

reasons
2d

486,

for
488

(S.D.N.Y. 2012) (quoting PRC Harris, Inc. v. Boeing Co., 700
F.2d 894, 897 (2d Cir. 1983)).

Here, the Rule 60 Motion is

brought twenty-three months after Patterson’s habeas petition
was

denied

certoriari.

and

ten

months

after

the

Supreme

Court

denied

Patterson offers no explanation at all for this

delay, and no reason occurs to the Court that could justify the
extraordinary relief of reopening his habeas case after so much
time has passed.

8

Patterson also contends that Shevitz provided ineffective assistance of
counsel by (1) refusing his request to make an argument in his first appeal
concerning the prior felony information; and (2) initially consenting to
Patterson’s resentencing in absentia.
The latter is inconsistent with
Shevitz’s explanation, in Patterson’s presence in open court, that Patterson
“thought that the reason he was coming back and wanted to come back was for
the 2255” and that Patterson “would not have insisted on coming back” just to
be resentenced. (Tr. 14:4-8.)

11

Second, the motion lacks merit.

The Second Circuit has

held that “because a habeas petitioner has no constitutional
right

to

counsel

in

his

habeas

proceeding,

. . .

to

be

successful under Rule 60(b)(6), [the petitioner] must show more
than ineffectiveness under Strickland v. Washington, 466 U.S.
668 (1984).”

Harris v. United States, 367 F.3d at 77 (citing

Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)).

Instead,

“[t]o obtain relief under Rule 60(b)(6), a habeas petitioner
must show that his lawyer abandoned the case and prevented the
client from being heard, either through counsel or pro se.”
Harris, 367 F.3d at 77.9

Here, far from abandoning Patterson,

Shevitz responded Patterson vigorously and beyond the scope of
her appointment by pursuing his claims that both Lichtman and
Paisley had rendered ineffective assistance of counsel.

See,

e.g., Negron v. United States, 394 F. App’x 788, 794 (2d Cir.
2010) (summary order) (habeas counsel who “took repeated and
competent
case).

action

Moreover,

submissions
including

on

during

the

[the

client’s]

Patterson
the

himself

pendency

submission

behalf”
made

of

the

introducing

the

ineffective assistance of counsel.

did

not

numerous
habeas

issue

abandon
pro

se

proceeding,
of

Paisley’s

Further, Patterson was not

shy about demonstrating his disagreement with his counsel, as he

9

Only Rule 60(b)(6),
Patterson’s claims.

and

not

Rules

12

60(b)(1)-(5),

has

bearing

on

did by “renouncing two of the arguments made in [Shevitz’s]
reply papers.”

Patterson I, 2012 WL 3866489, at *3.

demonstrates

that

counsel

disregarded

had

Patterson

knew

how

instructions

to

This amply

complain

and

that

he

that
could

his
have

informed the Court of his view that she had provided ineffective
assistance.

Instead, in a June 20, 2012 letter to the Court,

Patterson “plead[ed] for this Court’s appointment and continued
assistance from Criminal Justice Act Attorney, Vivian Shevitz.”10
Ultimately, Patterson’s habeas claims, as presented by both
his counsel and himself, were exhaustively considered on the
merits

in

the

Patterson

I

decision.

Thus,

Shevitz

neither

abandoned Patterson nor prevent Patterson from being heard, and
Rule 60(b) relief is unavailable.11

B.

Remaining Claims
Because

Supplemental

each

of

Claim

Claims

One,

challenges

Three,

and

Patterson’s

Five,

criminal

and

the

sentence

rather than the integrity of habeas proceedings, these claims
are outside of the scope of Rule 60(b).
extent

that

Claim

Two

charges

Additionally, to the

Shevitz

with

ineffective

assistance of counsel for failing to file an appeal from the
10

This letter is preserved in the Chambers file and is referred to in
Patterson I, 2012 WL 3866489, at *10 n.10.
11
Patterson also argues that the Court should have deferred addressing
his habeas petition until after he had appealed from his resentencing on
remand.
Because Patterson did not appeal, this argument is illogical and
meritless.

13

reimposition of Patterson’s sentence, that claim also attacks
the underlying criminal sentence.12
It

is

within

the

Court’s

discretion

to

recharacterize

portions of a Rule 60(b) motion that attack the petitioner’s
criminal proceedings as a new § 2255 petition.

See Gitten, 311

F.3d at 534; Adams, 155 F.3d at 584 (2d Cir. 1998).
context,

the

effect

of

such

recharacterization

But in this
would

be

to

prolong the already extensive post-conviction proceedings with
no prospect of relief.

Ultimately, Patterson’s claims represent

an effort to obtain a below-mandatory-minimum sentence under 18
U.S.C.
Court

§ 924(c)
in

Abbott

as

interpreted

before

by

Patterson’s

Such a result would be unlawful.
from

his

resentencing,

the

and

instead

United

conviction

States
became

Supreme
final.

Had Patterson timely appealed

sentence

affirmed in light of Abbott.
Abbott

the

surely

would

have

been

Had this Court shut its eyes to

followed

the

Second

Circuit’s

earlier

decision in Williams, the Government surely would have appealed
successfully.

Were Patterson’s sentence vacated today, sentence

would be reimposed not under Williams, but under Abbott.

Thus,

further proceedings seeking to attack Patterson’s sentence would
be

futile.

Accordingly,

the

Court

12

declines

to

sua

sponte

For the reasons stated in Part III.A above, Patterson’s ungrateful
attack on Shevitz’s performance is contradicted by the contemporaneous
record.

14

recharacterize

Patterson’s

motion

as

a

§ 2255

petition.

Instead, the motion is denied.
Only Claim One, which asserts that this Court failed to
transmit a notice of appeal in his criminal case to the Court of
Appeals, deserves further comment.
Court

received

a

letter

from

On September 12, 2012, the

Patterson,

dated

September

10,

2012, which Patterson now characterizes as an appeal from “both
Criminal

and

Civil

cases.”

The

letter

read

principally

as

follows:
Re:

United States v. Anthony Patterson
Case No: 06-CR-080 (NRB)
Civil No: 10 Civ. 9542 (NRB)

Dear Honorable Judge Naomi R. Buchwald:
Base on the Court ruling in the above case
mention.
At this time, I am respectfully, filing an Notice
of Appeal.
In addition, I am also respectfully that, this
Honorable Court will be able to appointed counsel to
assist me on my Direct Appeal.
I truly appreciate your attention in this matter
of mine.
Respectfully
A. Patterson
Pro-Se13
(Crim. Doc. No. 211; Habeas Doc. No. 14.)

This Court construed

the letter as a notice of appeal and referred it to the Second
Circuit.

13

Grammatical errors are as in the original.

15

As

described

opened

two

construed

above,

appeals

the

it

but

remaining

appears

that

dismissed
appeal

as

one

the

as

Second

Circuit

duplicative,

challenging

the

and

denial

Patterson’s habeas petition rather than his resentencing.

of

This

is the most logical interpretation of the letter because (1) the
letter

was

petition

sent

but

five

more

days

than

after

the

fifteen

denial

months

of

after

the

habeas

Patterson’s

resentencing in open court; (2) the letter’s reference to the
“Court ruling” is most naturally interpreted to refer to the
denial of the habeas petition; and (3) the letter lacks any
reference

to

Patterson’s

sentence.

A

review

of

the

Second

Circuit docket shows no sign that Patterson objected to either
this characterization of his appeal or to the dismissal of the
“duplicative” appeal.
Even assuming that the September 10, 2012 letter could have
been

construed

criminal

case,

as
it

a

second
was

notice

of

exceedingly

appeal

in

untimely.

Patterson’s
A

criminal

defendant has only fourteen days from the entry of a judgment or
order

to

file

4(b)(1)(A)(i).
court

on

May

a

notice

of

appeal.

See

Fed.

R.

Civ.

P.

As noted above, Patterson was informed in open
24,

reimposed sentence.

2011

that

he

had

(Tr. 19:12-13.)

a

right

to

appeal

the

Although Patterson made

several subsequent submissions, including pro se submissions, he
did not submit anything to the Court that could be colorably

16

construed as a notice of appeal until this letter.

Further,

review

sign

of

the

Patterson

Second

objected

Circuit

docket

contemporaneously

reveals
to

no

either

the

a

that
Second

Circuit's understanding of his letter or to its dismissal of his
"duplicative"
will

not

that

would,

Under

appeal.

assist
in

Patterson
any

these

circumstances,

in
be

event,

reopening
futile

in

appellate
light

of

this

Court

proceedings
Abbott

and

Patterson I.

CONCLUSION

For the foregoing reasons,
two claims

(No.

275

in 06 Cr.

Patterson's motion to disregard
80)

is granted,

and Patterson's

Rule 60 Motion (No. 256 in 06 Cr. 80) is denied.
IT IS SO ORDERED .

Dated:

New York, New York
August 25, 2015

L~

NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

17

Copies of the foregoing Memorandum and Order have been mailed on
this date to the following:
Anthony Patterson
Reg. No. 57631-004
FCI Mendota
P.O. Box 9
Mendota, CA 93640
Attorney for the Government
Jennifer Gachiri, Esq.
Assistant United States Attorney
1 St. Andrew's Plaza
New York, NY 10007

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