Philippeaux v. United States of America

Filing 38

ORDER ADOPTING REPORT AND RECOMMENDATION for 7 Motion for Bond filed by Philander Philippeaux; 10 Motion for Miscellaneous Relief filed by Philander Philippeaux; 23 Motion for Default Judgment filed by Philander Philippeaux; 26 Mot ion for Miscellaneous Relief filed by Philander Philippeaux. For the foregoing reasons, the Court adopts the 28 Report and Recommendation in its entirety. Accordingly, Petitioner's motion pursuant to 28 U.S.C. 2255 to vacate, set aside, o r correct his sentence is denied, as are Petitioner's collateral motions, see No. 18-cv-5974, Dkts. 7, 10, 23, 26; No. 13-cr-277. Dkts. 129, 130, 132, 136, 138. The Clerk of Court is respectfully directed to terminate motions pending at Dkts. 7, 10, 23, and 26 in No. 18-cv-5974; terminate the motions pending at Dkts. 122, 125, 129, 130, 132, 136, and 138 in No. 13-cr-277; mail a copy of this Order to Petitioner; and close this case. (Signed by Judge Ronnie Abrams on 3/9/2020) (va) Transmission to Docket Assistant Clerk for processing.

UNITED STATES DISTRJCT COURT
SOUTHERN DISTRJCT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
/
DATE FILED:
"i Z1J

3/

PHILANDER PHILIPPEAUX,
Petitioner,

No. 18-CV-5974 (RA)
ORDER ADOPTING REPORT AND
RECOMMENDATION

V.

UNITED STATES OF AMERJCA,
Respondent.

RONNIE ABRAMS, United States District Judge:
Petitioner Philander Philippeaux, proceeding prose, has moved pursuant to 28 U.S.C. §
225 5 to vacate, set aside, or correct his sentence in connection with his September 2015 conviction
for conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine
in violation of21 U.S.C. §§ 846, 84 l(b)(l )(A) and conspiracy to import into the United States five
kilograms or more of cocaine in violation of21 U.S.C. §§ 963, 960(b)(l)(B). See Dkts. 1, 5 (the
"Petition"). 1 Since filing his Petition, Petitioner has also filed a number of collateral motions in
both this action and the underlying criminal action, including a motion for bond pending the §
2255 motion, see No. 18-cv-5974, Dkt. 7; No. 13-cr-277, Dkts. 129, 130; a motion for summary
reversal, see No. 18-cv-5974, Dkt. 10; No. 13-cr-277, Dkt. 132; a motion to recall the mandate,
see No. 13-cr-277, Dkt. 136; a motion for the Court to take judicial notice of Petitioner's intent to
file a petition for writ of mandamus, see No. 18-cv-5974, Dkt. 26; No. 13-cr-277, Dkt. 138; and a
motion for judicial default, see No. 18-cv-5974, Dkt. 23. On January 7, 2020, Magistrate Judge

1

See also No. 13-cr-277, Dkts. 122, 125.

Sarah Netbum issued a Report and Recommendation (the "Report") recommending that the Court
deny the Petition in its entirety, as well as deny Petitioner's collateral motions. See Dkt. 28. 2 On
January 16, 2020 and January 21, 2020, Petitioner filed objections to the Report. See Dkts. 29
("First Obj."), Dkt. 31 ("Second Obj."). 3

To date, Respondent has not filed any responses to the

Objections.
The Court assumes the parties' familiarity with the facts, as outlined in detail in the Report.
For the following reasons, the Court adopts Judge Netbum's thorough and well-reasoned Report
in its entirety. Both the Petition and Petitioner's collateral motions are therefore denied.

LEGAL STANDARDS
When a magistrate judge has issued a report and recommendation, the district court "may
accept, reject, or modify, in whole or in part, the findings or recommendations made [therein]."
28 U.S.C. § 636(b)(l). "When a timely and specific objection to a report and recommendation is
made, the Court reviews de nova the portion of the report and recommendation to which the party
objects." Razzoli v. Federal Bureau of Prisons, No. 12 Civ. 3774 (LAP) (KNF), 2014 WL
2440771, at *5 (S.D.N.Y. May 30, 2014) (citing 28 U.S.C. § 636(b)(l) and Fed R. Civ. P.

2

The Report was also filed in the underlying criminal case. See No. 13-cr-277, Dkt. 139.

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Although the Report was filed on both the civil habeas docket and the underlying criminal docket,
Petitioner submitted two sets of objections. The first set of objections, Dkt. 29, were submitted in the
instant civil habeas case. The second set of objections were initially only submitted in the underlying
criminal case. See No. 13-cr-277, Dkt. 140. The Clerk of Court subsequently re-filed the second set of
objections on the habeas docket. See Dkt. 31. In both cases, Petitioner filed several letters and "judicial
notices," seeking "to put this Court on Judicial Notice" that re-filing the second set of objections on the
civil docket was a "clerical mistake," and arguing that this second set of objections does not apply to the
Report. See No. 18-cv-5974, Dkts. 32-35; No. 13-cr-277, Dkts. 142-143. As Petitioner's§ 2255 motion
stems from his underlying criminal case, and the Report addresses that motion, as well as the collateral
motions Petitioner has filed in both cases, the Court finds no error in the re-filing of the second set of
objections on the civil docket. The Court also notes that the second set of objections attaches the first set
of objections as Exhibit A, and only contains 3 other pages. Compare No. l 8-cv-5974, Dkt 29, with No.
l 8-cv-5974, Dkt. 31 at ECF page 5-21, and No. l 3-cr-277, Dkt. 140-1.

2

72(b)(3)). "To accept those portions of the report to which no timely objection has been made,
however, 'a district court need only satisfy itself that there is no clear error on the face of the
record."' Id. (quoting Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)).
Moreover, "[w]hen a party makes only conclusory or general objections, or simply
reiterates his original arguments, the Court reviews the Report and Recommendation only for clear
error."

Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002); see also Crum v.

Billingsby, No. 11 Civ. 2979 (GBD) (RLE), 2014 WL 2855030, at *1 (S.D.N.Y. June 20, 2014)
("[W]here the objections are merely perfunctory responses, argued in an attempt to engage the
district court in a rehashing of the same arguments set forth in the original [motion], reviewing
courts should review a report and recommendation for clear error.") (citation omitted).

"A

magistrate judge's decision is clearly erroneous only if the district court is 'left with the definite
and firm conviction that a mistake has been committed."' Stenson v. Heath, No. 11-CV-5680
(RJS) (AJP), 2015 WL 3826596, at *2 (S.D.N.Y. June 19, 2015) (citation omitted).
The Court must also be mindful that a pro se litigant's submissions are to be "construed
liberally and interpreted 'to raise the strongest arguments that they suggest."' Res tea v. Brown

Harris Stevens LLC, No. 17-CV-4801 (VEC) (GWG), 2018 WL 3435060, at* 1 (S.D.N.Y. July 16,
2018) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
Nevertheless, "even a prose party's objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed
a second bite at the apple by simply relitigating a prior argument." Crum, 2014 WL 2855030, at
* 1 ( citation omitted).

3

DISCUSSION

Petitioner primarily objects to the Report's conclusion that, notwithstanding his arguments
that jurisdiction and venue were fraudulently obtained through allegedly "false" phone records,
see, e.g., Pet. at 3-4, 9, both jurisdiction and venue were proper in the underlying criminal case.
See Report at 7 ("Because Philippeaux was charged with two federal conspiracy crimes, the district

court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231."); id. ("Because [the district
court] had jurisdiction over the subject matter of the case, the court also had personal jurisdiction
over Philippeaux."); id. at 8-9 (finding that venue was proper in part because "[a] coconspirator's
attempted narcotics deal is an 'overt act in furtherance of the criminal scheme,' sufficient to satisfy
the venue requirement for count one," and that as to count two, "the parties entered a stipulation
that one of Philippeaux's coconspirators ... was 'extradited from Colombia and landed first at an
airport located in the Southern District of New York"'). This precise argument was the focus of
the Petition, see Pet. at 3-10, which Judge Netbum carefully considered and rejected in the Report,
see Report at 7-9. Upon review, the Court finds no clear error in Judge Netbum's conclusion that

jurisdiction and venue were proper-and not fraudulently obtained-in the underlying criminal
case.
Many of Petitioner's other objections relate to the Report's findings concemmg his
ineffective assistance of counsel claims. See First Obj. at 7-9, 11-12. These arguments, too, were
raised in the Petition, see Pet. at 3-7, 9-10, and addressed by Judge Netbum, see Report at 9-14.
The Court finds no error in the Report's conclusions that neither Petitioner's trial counsel nor his
appellate counsel were ineffective.
Finally, Petitioner claims that the objections he initially filed in the underlying criminal
case, but that have since been re-filed in the present habeas action, see Dkt. 31, are not relevant to

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the instant Report. See, e.g., Dkt 34 ("He did not file this document to His 'Habeas Corpus' case
(2255 civil case). The civil case already has its own 'OBJECTION TO R&R', which is docket
(29]. Docket (31] a totally different objection belongs to a criminal case with a different case
number(# 1: 13-cr-00277-RA-SN) and should be removed according to 'law."'). These objections
concern Judge Netburn's determination that the Court should deny Petitioner's motion to recall
the mandate, No.13-cr-277, Dkt. 136, and his motion for the Court to take judicial notice of his
intent to file a petition for writ of mandamus, No. 13-cr-277, Dkt. 138, as meritless. See Report at
15; Second Obj. at 1-3. The Court agrees with Judge Netburn's conclusion that her authority to
issue the Report, including on the motion to recall and Petitioner's other motions for post-trial
relief, was entirely proper. See 28 U.S.C. § 636(b)(l)(B) ("[A] judge may also designate a
magistrate judge . . . to submit to a judge of the court proposed findings of fact and
recommendations for the disposition, by a judge of the court, ... of applications for posttrial relief
made by individuals convicted of criminal offenses and of prisoner petitions challenging
conditions of confinement."). Moreover, to the extent that Petitioner is seeking relief from this
Court as to his request to recall the mandate issued by the Second Circuit, the Court cannot consider
that request because "district courts do not have the jurisdiction to recall the mandate of an
appellate court, as they must abide by the decisions of the higher courts and cannot overrule them."
Paredes-Silva v. United States, 632

Supp. 2d 349,352 (S.D.N.Y. 2009) (citation omitted),

In sum, the Court finds no error-clear or otherwise-in Judge Netburn's Report. See
Walker, 216 F. Supp. 2d at 292. Even if the Court were to review the Report de nova, its conclusion

would be the same, and would rest on the same reasoning as that articulated by Judge Netburn.

5

CONCLUSION

For the foregoing reasons, the Court adopts the Report and Recommendation in its entirety.
Accordingly, Petitioner's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his
sentence is denied, as are Petitioner's collateral motions, see No. 18-cv-5974, Dkts. 7, 10, 23, 26;
No. 13-cr-277, Dkts. 129, 130, 132, 136, 138. The Clerk of Court is respectfully directed to
terminate the motions pending at Dkts. 7, 10, 23, and 26 in No. 18-cv-5974; terminate the motions
pending at Dkts. 122, 125, 129, 130, 132, 136, and 138 in No. 13-cr-277; mail a copy of this Order
to Petitioner; and close this case.
SO ORDERED.
Dated:

March 9, 2020
New York, New York
Ro 1e
rams
Un ted States District Judge

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