Philippeaux v. United States of America

Filing 62

ORDER terminating 46 Motion ; terminating 59 Motion for Reconsideration; terminating 60 Motion for Bond. Because Philippeaux's pending motions in both cases lack merit, and because many of them simply rehash arguments that have been previously raised and rejected, the Court denies them all. Philippeaux is reminded that if he continues to file frivolous or meritless documents in these cases, the Court will direct him to show cause why he should not be barred from filing further documents in these actions. The Clerk of Court is respectfully directed to terminate the motions in No. 13-cr-277 pending at Dkts. 147, 150, 153, and 154; terminate the motions in No. 18-cv- 5974 pending at Dkts. 46, 59, and 60; and mail a copy of this Order to Philippeaux. SO ORDERED.. (Signed by Judge Ronnie Abrams on 10/14/2020) (kv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 10/14/2020

PHILANDER PHILIPPEAUX,
Petitioner,

13-cr-277 (RA)
18-cv-5974 (RA)

v.
ORDER
UNITED STATES OF AMERICA,
Respondent.
RONNIE ABRAMS, United States District Judge:
In September 2015, Petitioner Philander Philippeaux was convicted of one count of
conspiring to distribute and possess with intent to distribute five kilograms or more of cocaine in
violation of 21 U.S.C. §§ 846, 841(b)(1)(A) and one count of conspiring to import into the United
States five kilograms or more of cocaine in violation of 21 U.S.C. §§ 963, 960(b)(1)(B). See No.
13-cr-277, Dkt. 116. In January 2016, Philippeaux was sentenced to 211 months’ imprisonment.
See No. 13-cr-277, Dkt. 119 at 6.
In June 2018, Philippeaux, proceeding pro se, moved pursuant to 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence. On March 9, 2020, this Court adopted Magistrate Judge
Sarah Netburn’s Report and Recommendation (the “Report”) in its entirety, and denied both the §
2255 petition and Philippeaux’s collateral motions.1 See No. 18-cv-5974, Dkt. 38. Since that date,
Philippeaux has filed numerous frivolous motions, many of which the Court has repeatedly denied.
In particular, on March 16, 2020, Philippeaux filed a motion to alter or amend the Court’s Order

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In addition to his § 2255 petition, Philippeaux also filed various collateral motions in both the habeas action, No.
18-cv-5974, and the underlying criminal action, No. 13-cr-277, including a motion for bond, a motion for summary
reversal, a motion to recall the mandate, a motion for the Court to take judicial notice of Philippeaux’s intent to file a
petition for writ of mandamus, and a motion for judicial default. See No. 13-cr-277, Dkts. 129-30, 132, 136, 138;
No. 18-cv-5974, Dkts. 7, 10, 23, 26.

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adopting the Report pursuant to Fed. R. Civ. P. 59(e), see No. 18-cv-5974, Dkt. 39, which the
Court denied on March 20th, see No. 18-cv-5974, Dkt. 40. On April 6, 2020, Philippeaux filed a
second motion to alter or amend the Court’s Order adopting the Report pursuant to Fed. R. Civ. P.
59(e), see No. 18-cv-5974, Dkt. 41, which the Court similarly denied on April 8, 2020, see No.
18-cv-5974, Dkt. 42. On April 13, 2020, Philippeaux filed a third motion to alter or amend the
Court’s Order adopting the Report pursuant to Fed. R. Civ. P. 59(e), see No. 18-cv-5974, Dkt. 43,
which the Court again denied on April 15, 2020, see No. 18-cv-5974, Dkt. 44. In its April 15th
Order, the Court also cautioned Philippeaux that if he continued “to file frivolous or meritless
documents in this case, the Court [would] direct [him] to show cause why he should not be barred
from filing further documents in this action.” See id.
Philippeaux then filed a notice of appeal to the Second Circuit Court of Appeals, see No.
18-cv-5974, Dkt. 45, and on April 29, 2020, he filed an amended notice of appeal, see No. 18-cv5974, Dkt. 48. While his appeal was pending, Philippeaux continued to file additional motions in
his habeas case. On May 5, 2020, Philippeaux filed a “petition for declaratory and speedy coercive
injunctive relief pending appeal and declaration and certification.” See No. 18-cv-5974, Dkt. 46.
On August 11, 2020, Philippeaux filed an “emergency motion for relief from judgment or order
pursuant to Fed. R. Civ. P. 60(b)(2)(3)(4), motion to dismiss falsified indictment, motion for
immediate discharge of prisoner,” see No. 18-cv-5974, Dkt. 52, which the Court denied on August
14, 2020, see No. 18-cv-5974, Dkt. 53. And on August 25, 2020, Philippeaux filed an “emergency
motion to amend or alter judgment or order pursuant to Federal Rule of Civil Procedure 59(e),”
see No. 18-cv-5974, Dkt. 54, which the Court denied that same day, see No. 18-cv-5974, Dkt. 55.
On August 28, 2020, the Second Circuit issued its mandate, denying Philippeaux’s prior
motions for “bond, judicial notice, immediate discharge, default judgment, and a certificate of
appealability,” and dismissed his appeal. See No. 18-cv-5974, Dkt. 56. Following the Circuit’s
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mandate, Philippeaux continued to file motions in his habeas case. On September 9, 2020, he filed
a “renewed emergency motion for relief from final judgment, in light of newly transferred
jurisdiction from the appeals court, pursuant to Rule 60(b)(2)(3)(4), due to void judgment because
of prosecutor egregious misconduct, by filing a fake indictment to unlawfully manufacture subject
matter jurisdiction, motion for immediate discharge of prisoner,” see No. 18-cv-5974, Dkt. 59, and
on September 18, 2020, he filed an “emergency motion for bond pending this Court’s relief from
final judgment, due to void judgment, to dismiss indictment & immediate discharge of prisoner,
pursuant to filing of a fake indictment against movant,” see No. 18-cv-5974, Dkt. 60. The Second
Circuit issued another mandate on October 7, 2020, denying Philippeaux’s petition for a writ of
mandamus. See No. 18-cv-5974, Dkt. 61.
Similarly, over the past few months, Philippeaux has also filed additional motions in his
underlying criminal case. On May 4, 2020, Philippeaux filed a “petition for declaratory and speedy
coercive injunctive relief pending appeal and declaration and certification.” See No. 13-cr-277,
Dkt. 147. On August 17, 2020, he filed an “emergency motion to dismiss indictment (nunc pro
tunc), or on the Court’s own motion (sua sponte) for unlawfully manufacturing subject matter
jurisdiction, motion for immediate discharge of prisoner,” see No. 13-cr-277, Dkt. 148, which the
Court denied on August 18, 2020, see No. 13-cr-277, Dkt. 149. On August 18, 2020, Philippeaux
filed a virtually identical “emergency motion to dismiss indictment (nunc pro tunc), or on the
Court’s own motion (sua sponte) for unlawfully manufacturing subject matter jurisdiction, motion
for immediate discharge of prisoner.” See No. 13-cr-277, Dkt. 150. On August 24, 2020,
Philippeaux filed a “motion for reconsideration on Order,” seeking reconsideration of the Court’s
August 18th Order denying his August 17th “emergency motion,” see No. 13-cr-277, Dkt. 151,
which the Court denied on August 25, 2020, see No. 13-cr-277, Dkt. 152. Finally, on September
9, 2020, Philippeaux filed a “renewed emergency motion to dismiss indictment (nunc pro tunc),
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or on the Court’s own motion (sua sponte), in light of newly transferred jurisdiction from the
appeals court, pursuant to prosecutor egregious misconduct, by filing a fake indictment to
unlawfully manufacture subject matter jurisdiction, motion for immediately discharge of
prisoner,” see No. 13-cr-277, Dkt. 153, and on September 18, 2020, he filed an “emergency motion
for bond pending this Court’s dismissing indictment (nunc pro tunc), due to void judgment, to
dismiss indictment & immediate discharge of prisoner, pursuant to filing of a fake indictment
against movant,” see No. 13-cv-277, Dkt. 154.
Because Philippeaux’s pending motions in both cases lack merit, and because many of
them simply rehash arguments that have been previously raised and rejected, the Court denies
them all. Philippeaux is reminded that if he continues to file frivolous or meritless documents in
these cases, the Court will direct him to show cause why he should not be barred from filing further
documents in these actions. The Clerk of Court is respectfully directed to terminate the motions
in No. 13-cr-277 pending at Dkts. 147, 150, 153, and 154; terminate the motions in No. 18-cv5974 pending at Dkts. 46, 59, and 60; and mail a copy of this Order to Philippeaux.
SO ORDERED.
Dated:

October 14, 2020
New York, New York
Ronnie Abrams
United States District Judge

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