Massato v. United States of America

Filing 4

MEMORANDUM OPINION AND ORDER: For the foregoing reasons, Massaro's petition under 28 U.S.C. § 1651 and his motion for reconsideration under Fed. R. Civ. P. 60(b) are denied. Massaro's request for an evidentiary hearing is also denied.SO ORDERED. (Signed by Judge Miriam Goldman Cedarbaum on 2/25/2013) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JOSEPH MASSARO,
Petitioner,

MEMORANDUM OPINION
AND ORDER

-against12 Civ. 8609 (MGC)
UNITED STATES OF AMERICA,
Respondent.
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APPEARANCES:
JOSEPH MASSARO
Petitioner pro se
USP Lewisburg
P.O. Box 1000
Lewisburg, Pennsylvania 17837

Cedarbaum, J.
Petitioner Joseph Massaro seeks relief from judgment under
the All Writs Act, 28 U.S.C. § 1651, by writs of coram nobis and
audita querela.

He also moves under Fed. R. Civ. P. 60(b) for

reconsideration of the October 5, 2004 denial of his prior
petition under 28 U.S.C. § 2255. 1

For the reasons set forth

below, Massaro’s petition is denied.

Massaro’s request for an

evidentiary hearing is also denied.
On October 27, 1993, Massaro was convicted by a jury of ten
counts, related to his involvement in the Luchese organized
crime family, including murder and violations of the Racketeer
Influenced and Corrupt Organizations Act (“RICO”).
sentenced to life imprisonment.

He was

The Second Circuit affirmed his

conviction in an unpublished opinion on May 18, 1995.

Massaro

then filed a motion for a new trial and a petition for relief
under 28 U.S.C. § 2255.

After the denial of his petition was

appealed to the Supreme Court and reversed, Massaro v. United
States, 538 U.S. 500, 123 S. Ct. 1690, 155 L. Ed. 2d 714 (2003),
I again denied his petition on October 5, 2004, Massaro v.
United States, No. 97 Civ. 2971 (MGC), 2004 WL 2251679 (S.D.N.Y.
Oct. 5, 2004).

The denial was affirmed by the Second Circuit.

Massaro v. United States, 152 F. App’x 20 (2d Cir. 2005).

1

This opinion and order does not address Massaro’s recent
petition for habeas corpus, filed October 22, 2012.
2

Massaro now moves for relief from judgment under 28 U.S.C.
§ 1651 (the All Writs Act) and under Fed. R. Civ. P. 60(b) for
reconsideration of the denial of his § 2255 petition.
Massaro is still serving his sentence and seeks to have his
conviction reviewed. The chief ground on which he now moves is
ineffective assistance of counsel based on counsel’s refusal to
accept an offer of a continuance, a ground he argued in his
original § 2255 petition.

An additional allegation of

Massaro’s, namely that counsel acted as he did because of a
financial conflict of interest, was not raised in the initial §
2255 petition, but was raised on the appeal before the Second
Circuit.
Massaro makes a second allegation not raised in his § 2255
petition, namely that the government conspired with the primary
witness against him, Patrick Esposito, to withhold information
showing that Esposito had lied during interviews with the
government.

He asserts that Esposito “omitted relevant facts

about his attempt to dispose of the murder weapons.”

Massaro

does not explain why he did not previously raise this argument
in his § 2255 petition.

Additionally, his claims that Esposito

was lying in general during his testimony have been raised
previously in his petition under § 2255.
“The All Writs Act is a residual source of authority to
issue writs that are not otherwise covered by statute. [When] a
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statute specifically addresses the particular issue at hand, it
is that authority, and not the All Writs Act, that is
controlling.”

Pennsylvania Bureau of Correction v. U.S.

Marshals Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361, 88 L. Ed.
2d 189 (1985). Additionally, audita querela “is generally not
available to review a criminal conviction when the petitioner
could have raised his . . . claims in a 28 U.S.C. § 2255
motion,” even “in those cases where a petitioner is precluded
from raising his or her claims in a successive § 2255 motion
because a previous § 2255 motion was denied on the merits.”
Persico v. United States, 418 F. App’x 24, 25-26 (2d Cir. 2011)
(summary order); see also United States v. LaPlante, 57 F.3d
252, 253 (2d Cir. 1995) (audita querela is “probably available”
where there is an “objection to a conviction that has arisen
subsequent to the conviction and that is not redressable
pursuant to another post-conviction remedy”). As noted above,
Massaro’s claims have previously been raised in a petition under
§ 2255.

Accordingly, Massaro’s application under the All Writs

Act must be denied.
Finally, Massaro moves under Fed. R. Civ. P. 60(b) for
reconsideration of the denial of his § 2255 petition.
under Rule 60(b) is very limited.

Relief

It is available “only when

the Rule 60(b) motion attacks the integrity of the [§ 2255]
proceeding and not the underlying criminal conviction.”
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Harris

v. United States, 367 F.3d 74, 77 (2d Cir. 2004).

A Rule 60(b)

motion that attacks the underlying conviction can either be
treated as a “second or successive” habeas petition and
transferred to the Second Circuit or denied “as beyond the scope
of Rule 60(b).”

Id. at 82 (quoting Gitten v. United States, 311

F.3d 529, 534 (2d Cir. 2002)).

Massaro’s arguments for

reconsideration relate to the conduct of his attorney at trial
and allegations that a government witness lied prior to trial.
Both bases for reconsideration attack Massaro’s underlying
criminal conviction and are therefore beyond the scope of Rule
60(b).
For the foregoing reasons, Massaro’s petition under 28
U.S.C. § 1651 and his motion for reconsideration under Fed. R.
Civ. P. 60(b) are denied.

Massaro’s request for an evidentiary

hearing is also denied.
SO ORDERED.

Dated:

New York, New York
February 25, 2013

S/______________________________
MIRIAM GOLDMAN CEDARBAUM
United States District Judge

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