David Christie v. USA
Filing
12
OPINION AND ORDER.....Christies July 20, 2018 motion for relief from judgment is denied. Because Christie has not made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. 2253(c ); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). (Signed by Judge Denise L. Cote on 7/2/2019) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
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DAVID CHRISTIE,
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Defendant.
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08cr1244 (DLC)
13cv7780 (DLC)
OPINION AND ORDER
APPEARANCES
For the Government:
Geoffrey S. Berman
United States Attorney for the Southern District of New York
by: Robert B. Sobelman
One Saint Andrews Plaza
New York, New York 10007
For the Defendant:
Richard F. Albert
Morvillo Abramowitz Grand Iason & Anello P.C.
565 Fifth Avenue
New York, New York 10017
DENISE COTE, District Judge:
In a motion styled as Rule 60(b)(6) motion, defendant David
Christie seeks to be resentenced.
This motion is denied.
Background
On February 1, 2010, a jury returned a verdict of guilty
against Christie on two counts that charged him with importing
from Jamaica and conspiring to distribute five kilograms or more
of cocaine and 100 kilograms or more of marijuana, in violation
of Title 21, United States Code, Sections 846 and 963.
See
United States v. Christie, 08cr1244 (RWS), 2011 WL 180824, at *1
(S.D.N.Y. Jan. 19, 2011).
The evidence at trial established that from 2000 through
2008, Christie exported drugs from Jamaica to the United States
by, among other things, arranging for them to be hidden in wall
panels of the cargo sections of commercial airliners.
at *3-*4.
See id.
Christie’s co-conspirators received a commission of
two kilograms for every five kilograms of cocaine that he sent
from Jamaica.
The PreSentence Report calculated a base offense level of
38, based on Christie’s role in the importation of 150 pounds of
marijuana and 150 kilograms of cocaine, and a total offense
level of 42.
On February 3, 2011, Christie was sentenced to 240
months’ imprisonment, substantially below the Sentencing
Guidelines range of 360 months to life imprisonment.
On that
same date, an Order of Forfeiture was entered in the amount of
$3,150,000.
The forfeiture amount was based on the calculation that
Christie had trafficked in 150 kilograms of cocaine during the
2004-05 winter season, see Christie, 2011 WL 180824, at *2-*3,
at a value of $21,000 per kilogram.
There was no offset to
account for the quantity of cocaine Christie permitted his coconspirators to keep as commissions.
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On April 13, 2012, Christie’s conviction was affirmed on
direct appeal.
See United States v. Reid, 475 Fed. App’x 385
(2d Cir. 2012).
Christie did not seek review of the Order of
Forfeiture or of his sentence on direct appeal.
On October 30, 2013, Christie filed a pro se petition for
relief pursuant to 28 U.S.C. § 2255 (“2013 Petition”).
In the
2013 Petition and the accompanying memorandum of law, Christie
argued that he was denied effective assistance of counsel
because (1) counsel failed to object to the purported
constructive amendment of the indictment, (2) counsel failed to
object to the Order of Forfeiture, and (3) counsel advised
Christie not to testify at trial without explaining fully the
reasons why Christie should not testify.
Christie did not raise
any arguments in the 2013 Petition about his sentence or the
quantity of drugs attributed to him in the Court’s determination
of the applicable Guidelines range.
He did state that, had he
exercised his right to testify, he would have testified that “he
had never imported 300 kilograms of cocaine into the United
States.”
On May 23, 2014, the Honorable Robert W. Sweet denied
the 2013 Petition.
See Christie v. United States, 08cr1244
(RWS), 2014 WL 2158432 (S.D.N.Y. May 23, 2014).
Christie did
not request a certificate of appealability or otherwise seek
appellate review of the ruling.
3
On February 23, 2016, the Government moved for entry of a
Preliminary Substitute Assets Order.
counsel was appointed for Christie.
On July 8, 2016, new
On April 7, 2017, Judge
Sweet granted the Government’s motion only with respect to one
of the real properties the Government sought to forfeit, which
“was acquired on information and belief in the 1990’s for
$2,700,000,” “on the condition that any funds in excess of the
Money Judgment be returned to Christie.”
See United States v.
Christie, 249 F. Supp. 3d 739, 748 (S.D.N.Y. 2017).
Christie
appealed from that order.
While that appeal was pending, Christie moved for a writ of
error coram nobis, seeking a modification of the Order of
Forfeiture in light of Honeycutt v. United States, 137 S. Ct.
1626 (2017).
Christie was again appointed new counsel on
November 30, 2017.
On February 8, 2018, Judge Sweet entered a
Stipulation and Order (the “Stipulation”), wherein the
Government agreed not to seek to collect more than $1,890,000,
in satisfaction of the $3,150,000 money judgment entered on
February 3, 2011, which resolved both the appeal and the coram
nobis motion.
Specifically, the parties agreed in the
Stipulation that $1,890,000 “represents the proceeds for which
the defendant has been adjudged responsible as a result of his
conviction.”
The Stipulation did not address the quantity of
drugs attributable to Christie for purposes of sentencing.
4
On July 20, 2018, counsel for Christie filed the instant
motion for relief pursuant to Rule 60(b)(6) of the Federal Rules
of Civil Procedure.
November 13, 2018.
The motion became fully submitted on
Judge Sweet presided over oral argument on
the motion on November 28, 2018.
Counsel for Christie
explained, inter alia, that Christie was not arguing that the
Sentencing Guidelines calculation used at sentence was wrong.
Instead, he believed he should be resentenced so that his lack
of a financial interest in a large portion of the drugs he
exported to the United States could be taken into account as a
mitigating circumstance, something his defense attorney failed
to argue during the sentencing proceeding.
The case was
reassigned to this Court’s docket on May 8, 2019.
Discussion
Rule 60(b), Fed. R. Civ. P., provides in relevant part that
a district court may relieve a party from a final judgment
because of “(1) mistake, inadvertence, surprise, or excusable
neglect” or “(6) any other reason justifying relief from the
operation of the judgment.”
Unlike Rule 60(b)(1), Rule 60(b)(6)
does not prohibit a party from bringing a motion more than a
year after the entry of judgment in a civil case.
Civ. P. 60(c).
See Fed. R.
To obtain relief under Rule 60(b)(6), however, a
party must demonstrate “extraordinary circumstances” and show
that the relief requested “is not premised on one of the grounds
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for relief enumerated in clauses (b)(1) through (b)(5).”
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 86364 (1988).
In the habeas context, relief under Rule 60(b) is available
“only when the Rule 60(b) motion attacks the integrity of the
habeas proceeding and not the underlying criminal conviction.”
Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004)
(citation omitted).
A motion that “presents new claims for
relief from [the underlying] judgment of conviction” or attempts
to “add a new ground for relief” is beyond the scope of Rule
60(b).
Gonzalez v. Crosby, 545 U.S. 524, 531-32 (2005).
Such
claims and grounds can be put forth only in a successive habeas
motion that must be presented to the Court of Appeals in the
first instance.
Id. at 530.
When faced with an improper Rule
60(b) motion from a criminal defendant attacking his underlying
conviction, a district court may either transfer the motion to
the Court of Appeals for consideration as a second or successive
motion under 28 U.S.C. § 2244 (with advance notice to the
defendant), or simply deny the motion as being beyond the scope
of Rule 60(b).
Gitten v. United States, 311 F.3d 529, 534 (2d
Cir. 2002).
Separately, a Rule 60(b) motion must be made within a
“reasonable time.”
Fed. R. Civ. P. 60(c)(1).
When considering
whether a Rule 60(b) motion was made within a “reasonable time,”
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a court should consider the “particular circumstances of the
case, and balance the interest in finality with the reasons for
delay.”
PRCHarris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d
Cir. 1983).
The Second Circuit has deemed a delay in the filing
of a Rule 60(b) motion of 26 months from the entry of the
challenged criminal judgment to be unreasonable absent
mitigating circumstances.
See Kellogg v. Strack, 269 F.3d 100,
104 (2d Cir. 2001).
Section 2255 provides, in relevant part, that a district
court may vacate and set aside a judgment of conviction
[i]f the court finds that the judgment was rendered
without jurisdiction, or that the sentence imposed was
not authorized by law or otherwise open to collateral
attack, or that there has been such a denial or
infringement of the constitutional rights of the
prisoner as to render the judgment vulnerable to
collateral attack.
28 U.S.C. § 2255.
The right to collaterally attack a judgment
of conviction under Section 2255 is limited by a one-year period
of limitation, which begins to run from the latest of, among
other things, the date on which the facts supporting the claims
presented could have been discovered through the exercise of due
diligence.
Id.
A second or successive Section 2255 petition may not be
entertained unless the petition is certified by a panel of the
Court of Appeals to contain newly discovered evidence that, if
proven, would be sufficient to establish by clear and convincing
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evidence that no reasonable fact finder would have found the
defendant guilty of the underlying offenses, or to invoke a new
rule of constitutional law that has been made retroactive to
cases on collateral review by the Supreme Court.
Id.
The present motion, although denominated a Rule 60 motion,
is in fact a successive habeas petition.
It seeks a
resentencing on the ground that defense counsel was ineffective
at Christie’s sentencing for not making a particular argument
when seeking leniency.
This is a challenge to the underlying
judgment, and not to the decision denying the 2013 Petition.
Even if it were possible to treat the motion as a Rule
60(b) motion -- and it is not -- it is untimely.
If brought to
challenge the integrity of Christie’s first habeas petition due
to mistake or excusable neglect, Christie had to bring it within
one year of the 2014 decision denying the petition.
He did not.
Even if he could properly characterize it as a Rule 60(b)(6)
motion, and thus as a challenge premised on a ground other than
those otherwise enumerated in Rule 60(b), he has failed to
demonstrate extraordinary circumstances justifying relief or
mitigating circumstances justifying the delay in bringing this
motion.
See Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d
Cir. 2004).
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Conclusion
Christie’s July 20, 2018 motion for relief from judgment is
denied.
Because Christie has not made a substantial showing of
a denial of a constitutional right, a certificate
appealability will not issue.
of
See 28 U.S.C. 2253(c); Tankleff
v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v.
Scully, 905 F.2d 24, 24 (2d Cir. 1990).
The Court certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Opinion and Order would not be taken in good faith. See Coppedge
v. United States, 369 U.S. 438, 444–45 (1962).
Dated:
New York, New York
July 2, 2019
__________________________________
DENISE COTE
United States District Judge
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