Razzoli v. United States of America

Filing 13

MEMORANDUM OPINION AND ORDER.....Razzolis petition of November 12, 2014 is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 2 35, 241 (2d Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Opinion and Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall close the case. (Signed by Judge Denise L. Cote on 1/21/2016) Copy Mailed to Kevin Razzoli by Chambers.(gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
KEVIN RAZZOLI,
:
Petitioner,
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:
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:
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UNITED STATES OF AMERICA,
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Respondent.
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14cv9555 (DLC)
12cr00550 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
Kevin Razzoli (“Razzoli”) filed a petition for a writ of
habeas corpus on November 12, 2014.

For the following reasons,

the petition is denied.
Background
On January 10, 2013, Razzoli was principally sentenced to
30 months’ imprisonment following his conviction at trial of
assaulting and spitting on Deputy U.S. Marshals.

The facts

underlying this conviction are set forth in a decision of
November 8, 2012, which denied his motion for a new trial.
United States v. Razzoli, 2012 U.S. Dist. LEXIS 161672 (S.D.N.Y.
Nov. 8, 2012).

In brief, Razzoli surrendered on June 8, 2012 to

the custody of the U.S. Marshals Service pursuant to an arrest
warrant for a parole violation.
custody, he was searched.
deputy.

After he was taken into

During this search, he spit on a

After Razzoli was escorted to the Metropolitan

Correctional Center, he swung his elbow and struck another
deputy in the face.

On September 25, 2012, Razzoli was

convicted of assaulting Deputy United States Marshals in
violation of 18 U.S.C. §§ 111(a) and 1114.
Razzoli appealed his conviction to the United States Court
of Appeals for the Second Circuit, arguing that (1) the District
Court should have granted Razzoli’s motion to recall prosecution
witnesses for further cross-examination, (2) the District Court
should have granted Razzoli’s motion for a new trial based on
the alleged destruction of unidentified evidence, (3) Razzoli’s
trial counsel was ineffective for failing to file an
interlocutory appeal from the District Court’s denial of his
Rule 33 motion, (4) the District Court improperly denied
Razzoli’s motion to subpoena a clergyman who purportedly would
have testified about the significance of the scapular that
Razzoli was wearing when he assaulted the Deputy United States
Marshal, (5) the District Court should not have denied Razzoli’s
claim, made in his Rule 33 motion, that the Government was
improperly recording his telephone conversations with his
attorney, (6) the District Court should have held an evidentiary
hearing at sentencing, (7) there were errors in Razzoli’s
Presentence Report, and (8) the District Court improperly denied
Razzoli’s request to subpoena witnesses and certain videotapes
for consideration at sentencing.

Razzoli also raised various
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other arguments which the Court of Appeals found meritless and
did not individually address.

In a summary order of December

23, 2013, the Second Circuit affirmed the conviction.

United

States v. Razzoli, 548 F. App'x 733, 736 (2d Cir. 2013).
Razzoli filed a petition for a writ of certiorari in the United
States Supreme Court, which was denied on October 20, 2014.

On

January 13, 2014, Razzoli filed a motion for a clarification of
his sentence, which was denied by order dated the same day.
In his November 12, 2014 petition, Razzoli seeks to vacate
his conviction on four separate grounds.

On December 2, 22, and

30, Razzoli filed applications seeking discovery in connection
with his petition and other relief, and on February 9, 2015,
filed a document requesting that certain applications should be
granted in light of the Government’s failure to respond to that
submission.

Following the Government’s filing of a response to

the petition on January 25, 2015, Razzoli filed a reply on April
13.

On December 8, Razzoli filed a document arguing that a

hearing is required.
Razzoli has also requested that this Court be recused.
January 26, 2015, he wrote to the Chief Judge of the Southern

On

District of New York to request this Court’s recusal.

On

February 4, Razzoli filed a motion to recuse this Court from
ruling on his petition.

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Discussion
I.

Recusal
In arguing for this Court’s recusal, Razzoli asserts that

this Court’s rulings in this case have violated the law.

This

is not an appropriate ground for recusal and Razzoli’s request
is denied.
[R]ecusal is not warranted where the only challenged
conduct ‘consist[s] of judicial rulings, routine trial
administration efforts, and ordinary admonishments
. . . to counsel and to witnesses,’ where the conduct
occurs during judicial proceedings, and where the
judge ‘neither (1) relie[s] upon knowledge acquired
outside such proceedings nor (2) display[s] deepseated and unequivocal antagonism that would render
fair judgment impossible.’
S.E.C. v. Razmilovic, 738 F.3d 14, 29-30 (2d Cir. 2013), as
amended (Nov. 26, 2013) (citing Liteky v. United States, 510
U.S. 540, 555 (1994)).
II.

Grounds for Habeas

Razzoli makes essentially four sets of arguments in his
petition.
A.

None of them has merit.
False Documents

In his first claim of error, Razzoli appears to assert that
the arrest warrant that caused him to surrender on June 8, 2012
was premised on inaccurate information.

He contends that

certain files possessed by various Government agencies include
inaccurate data, including files in the possession of the Bureau
of Prisons, U.S. Parole Commission, Federal Bureau of
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Investigation, and U.S. Marshals Service.

In particular,

Razzoli identifies a March 4, 2010 warrant as inaccurately
listing Razzoli’s race as black and a U.S. Marshals’ file
showing that Razzoli served in the Army rather than the Navy.
He also asserts that the U.S. Parole Commission records contain
a false lab report and data.
This claim has already been rejected and is not properly
raised as part of a § 2255 petition.

See United States v.

Sanin, 252 F.3d 79, 83 (2d Cir. 2001) (“It is well established
that a § 2255 petition cannot be used to ‘relitigate questions
which were raised and considered on direct appeal.’” (citation
omitted)).

In arguing for a new trial, Razzoli complained about

misstatements in the parole warrant paperwork.

The Court ruled

that these issues were not relevant to either the Indictment’s
charges or the testimony given by any trial witness.
2012 U.S. Dist. LEXIS 161672 at *15.

Razzoli,

In addition, the Court of

Appeals rejected this argument, which the defendant made on
appeal, when it affirmed the conviction after finding that his
“remaining arguments” were without merit.

Razzoli, 548 F. App'x

at 736.
B. Exclusion of Defense Experts
In his second claim of error, citing the Daubert standard,
Razzoli contends that the trial court erred in refusing to issue
subpoenas to compel trial testimony from three witnesses.
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Razzoli asserts that he should have been allowed to call a
Catholic priest, bishop, and cardinal to testify about Roman
Catholic doctrine.
This claim has also been rejected by this Court and the
Court of Appeals and is not properly brought through this
petition.

In the denial of the motion for a new trial, the

Court described at length the history related to the defendant’s
requests to call twenty-one witnesses at trial, including a
Father McDevitt and Chaplain Mung.
LEXIS 161672 at *22-24.

Razzoli, 2012 U.S. Dist.

The Court refused to permit witnesses

to testify generally about the views Catholics might hold
regarding scapulars.

Id. at 23-24.

Razzoli had been wearing a

scapular when he surrendered to the U.S. Marshals; he was
objecting to its removal when he spit at the deputy.
On appeal, the defendant argued that this Court improperly
denied his request to subpoena a clergyman to testify about the
significance of the scapular.

The Court of Appeals rejected

that claim, observing that “[b]ecause the appearance of a
scapular or its significance had no bearing on the illegality of
Razzoli’s conduct, the district court did not abuse its
discretion in denying the request.”
735.

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Razzoli, 548 F. App'x at

C. Counsel’s Failure to File an Interlocutory Appeal
In his third claim of error, Razzoli argues that his trial
counsel was ineffective because he refused to seek an
interlocutory appeal of the denial of subpoenas for witnesses
and DNA testing results.

To establish ineffective assistance of

counsel, a petitioner must show “(1) that his counsel's
representation ‘fell below an objective standard of
reasonableness,’ and (2) ‘that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.’”

Chrysler v. Guiney, 806

F.3d 104, 117 (2d Cir. 2015) (citing Strickland v. Washington,
466 U.S. 668, 688, 694, 104 S.Ct. 2052 (1984)).
Even if his counsel’s representation fell below an
objective standard of reasonableness, which Razzoli has not
shown, this prong of the petition would be denied.

Razzoli

cannot show that the result of the criminal proceedings would
have been different had his counsel filed an interlocutory
appeal.

First, the Court of Appeals determined that the

District Court did not improperly deny Razzoli’s requests to
subpoena a host of witnesses.

Razzoli, 548 F. App'x at 735.

Second, with respect to the DNA evidence, U.S. Marshal Deputy
Brian Murphy testified that no DNA test was conducted after the
assault.

Furthermore, even if Razzoli had obtained DNA test

results, Razzoli has not shown that it would have changed the
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outcome of the trial.

There is no dispute that Razzoli was the

person taken into custody by the U.S. Marshals on June 8, 2012,
and the Government introduced video surveillance footage of
Razzoli assaulting the two deputies.

Accordingly, none of the

grounds identified for an interlocutory appeal would have
changed the outcome of Razzoli’s trial and he has not
established ineffective assistance of counsel.
D. False Statements by AUSA
Razzoli’s fourth and final claim appears to relate to his
contention that the U.S. Attorney’s Office may have had improper
access to his privileged communications with his counsel during
the time he was incarcerated.

Razzoli asserts that the AUSA in

this case falsely represented to the Court that there were no
Title III wiretaps of Razzoli despite the fact that Razzoli had
been intercepted over the years in wiretaps conducted by various
state and federal agencies.

Razzoli also appears to claim that

his appointed counsel should have filed an interlocutory appeal
related to this issue.

Razzoli’s December 30, 2014 submission

attaches Bureau of Prisons telephone records which Razzoli
represents include the history of telephone calls he made in
July through September of 2012 to attorneys.
In rejecting the defendant’s motion for a new trial
premised on his contention that the prosecutors listened to
recordings of his telephone calls with his attorneys, the Court
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found inter alia that there was no evidence that any of the
defendant’s telephone calls recorded by the MCC and given to the
Government included telephone calls between the defendant and
his defense counsel in this prosecution or that the Government
had access to any privileged communication about this
prosecution.

Razzoli, 2012 U.S. Dist. LEXIS 161672 at *16-17.

The Court of Appeals also rejected his appeal regarding the
alleged improper recording of his telephone conversations with
his attorney.

Among other things, it noted that Razzoli had

access to a private telephone line for privileged
communications.

Razzoli, 548 F. App'x at 736.

III. Miscellaneous Relief
In his petition, Razzoli also requests various other
relief.

First, Razzoli seeks discovery of various items.

For

instance, he seeks the names of all “FBI/SIA Rats” held in the
MDC for a period of eleven years.

He also seeks a bail hearing.

Finally, he seeks production of DNA evidence taken by the U.S.
Marshals on July 17, 2012 (over a month after the assault) and
copies of CDs that were taken from him while he was serving his
sentence at “FCI Gilmer” and “FTC Philadelphia.”

These issues

do not appear related to any of Razzoli’s challenges to his
conviction and will be denied.

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Conclusion
Razzoli’s petition of November 12, 2014 is denied.

The

petitioner has not made a substantial showing of a denial of a
federal right and appellate review is, therefore, not warranted.
Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998);
Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990).

Pursuant

to 28 U.S.C. § 1915(a)(3), any appeal from this Opinion and
Order would not be taken in good faith.
States, 369 U.S. 438, 445 (1962).

Coppedge v. United

The Clerk of Court shall

close the case.

Dated:

New York, New York
January 21, 2016
__________________________________
DENISE COTE
United States District Judge

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COPIES MAILED TO:

Kevin Razzoli
83 Wales Ave.
Jersey City, NJ 07306