Aguiar v. Carter et al
Filing
128
OPINION AND ORDER denying 117 Motion for Reconsideration re 115 Opinion and Order granting 46 63 84 86 94 99 Motions to Dismiss. Signed by Judge William K. Sessions III on 8/21/2019. (jam)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
STEPHEN AGUIAR,
)
)
Plaintiff,
)
)
v.
)
)
RICHARD CARTER, JUSTIN
)
COUTURE, JARED HATCH,
)
ANDREW LAUDATE, MICHAEL
)
MORRIS, JOHN LEWIS, UNKNOWN
)
US DOJ GPS CONTRACTOR,
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UNKNOWN GOVERNMENT AGENTS,
)
UNKNOWN GOVERNMENT EMPLOYEES, )
VERIZON WIRELESS, TRACFONE,
)
UNKNOWN COURT CLERKS,
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UNKNOWN LEGAL ASSISTANTS,
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EUGENIA A.P. COWLES, WENDY
)
FULLER, TIMOTHY DOHERTY,
)
PAUL J. VAN DE GRAAF,
)
KATHERINE MYRICK,
)
)
Defendants.
)
File No. 2:17-cv-121
OPINION AND ORDER
Plaintiff Stephen Aguiar, proceeding pro se, is currently
serving a 30-year prison term as a result of his 2011 conviction
for drug distribution and conspiracy.
In the instant civil
action, Aguiar claims that various parties who were involved in
the investigation and prosecution of his criminal case violated
his federal rights.
The Court previously granted motions to
dismiss filed by Defendants Richard Carter, Justin Couture, Jared
Hatch, Andrew Laudate, Eugenia Cowles, Wendy Fuller, Timothy
Doherty, Paul Van de Graaf, and Katherine Myrick (collectively
the “Federal Defendants”).
Aguiar now moves for reconsideration
of portions of those rulings.
Specifically, Aguiar contests the
dismissal of various claims on the basis of collateral estoppel,
Heck v. Humphrey, and timeliness.
For the reasons set forth
below, the motion for reconsideration is denied.
Factual Background
The facts underlying dismissal of the Federal Defendants are
set forth in the Court’s prior Opinion and Order, and the
parties’ familiarity with those facts is presumed.
Briefly
stated, Aguiar has been convicted of federal drug and/or firearm
offenses three times in the District of Vermont, most recently in
2011.
The 2011 conviction was upheld by the United States Court
of Appeals for the Second Circuit.
Aguiar now claims constitutional and statutory violations
related to his 2011 conviction.
Several of the claims asserted
in this case were raised previously either in Aguiar’s direct
appeal, or in his Section 2255 motion for collateral relief, or
both.
Accordingly, upon motions from the Federal Defendants, the
Court dismissed certain claims on the basis of collateral
estoppel.
The Court dismissed other claims on the basis of the
Supreme Court’s ruling in Heck v. Humphrey, 512 U.S. 477, 487
(1994), which held that a prisoner cannot bring a civil complaint
where judgment in his favor would necessarily imply the
invalidity of his conviction.
certain claims are untimely.
Finally, the Court found that
Aguiar now moves for
reconsideration of those rulings.
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Discussion
I.
Legal Standard
The accepted standard for granting a motion for
reconsideration “is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions
or data that the court overlooked.”
Analytical Surveys, Inc. v.
Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation
omitted).
Reconsideration may also be granted if the movant
demonstrates an “intervening change in controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.”
Kolel Beth Yechiel Mechil
of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d
Cir. 2013) (citing Virgin Atl. Airways, Ltd. v. Nat’l Mediation
Bd., 956 F.2d 1245 (2d Cir. 1992)).
A motion for reconsideration
“is neither an occasion for repeating old arguments previously
rejected nor an opportunity for making new arguments that could
have been previously advanced.”
Assoc. Press v. U.S. Dep’t of
Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005).
II.
Claims Against Assistant United States Attorneys
Aguiar first contends that the Court should not have
dismissed his claim, set forth in Count 8 of the Complaint, that
AUSAs Van De Graaf and Fuller falsified a court stamp on a July
2, 2009 wiretap application.
The Court dismissed the claims in
Count 8 on the basis of collateral estoppel, finding that the
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Second Circuit had already determined the propriety of the
application.
Aguiar now submits that while the matter of
authorization was presented previously, the question of
falsification has not been addressed.
Aguiar’s reconsideration motion cites paragraphs 68 and 76
of his Complaint.
Paragraph 68 claims that the July 2, 2009
Title III warrant was filed with the Court on July 6, 2009.
As
explained in the prior Paragraph, and in documents submitted
previously by the government, the warrant was signed after hours
on July 2, July 3 was a holiday, and filing therefore did not
occur until July 6.
Accordingly, the document was stamped as
received on July 6, 2009.
Paragraph 76 alleges that when defense
counsel moved to suppress the wiretap application as incomplete,
AUSAs Fuller and Doherty submitted to the Court a copy of the
July 2, 2009 wiretap application.
clear claim of falsification.
Neither paragraph presents a
Moreover, Aguiar’s reconsideration
motion cites an exhibit from his criminal case (Case No. 2:09-cr90, ECF No. 215-5) which is entirely consistent with the
explanation of events offered by both the government and Aguiar’s
Complaint.
Upon reconsideration, the Court finds no reason to
alter the determination that this claim is barred.
Aguiar next argues that Heck should not apply to his claims
of fabricated GPS evidence, unlawfully obtained MySpace evidence,
and falsification of the July 2, 2009 date stamp.
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With respect
to the GPS evidence, this Court previously determined that such
evidence was one of the key components of the government’s case
against him.
Aguiar’s reconsideration motion relies upon his
Brady challenge to the GPS, though this Court found previously
that his Brady claim was without merit.
75).
Id. (ECF No. 767 at 73-
Consequently, even assuming that the GPS evidence alone was
not critical to Aguiar’s conviction, he is estopped from raising
that claim again.
Aguiar similarly claims that evidence obtained from his
MySpace account, which included photographs of his vehicle and
messages sent from his user number, was previously held to be
non-prejudicial.
In its ruling on Aguiar’s ineffective
assistance of counsel claim, the Magistrate Judge determined that
Aguiar had not carried his burden of proof with respect to
prejudice because the amount of evidence against him was
overwhelming.
Here, the Court considered the role of the
challenged evidence in the aggregate.
In that context, and given
the role of such evidence in helping law enforcement accumulate
other evidence, Aguiar’s challenges would undermine the validity
of his conviction.
Furthermore, as the Court held previously, there is no basis
for an inference that the AUSA Defendants were involved in any
wrongdoing with respect to the evidence in question.
As alleged
in the Complaint, the MySpace information was pursued by means of
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a DEA subpoena.
GPS evidence was allegedly fabricated by DEA
agents and contractors.
While Aguiar argues that the AUSA
Defendants “lied before and during trial” about the authenticity
and origin of the GPS evidence, the cited paragraphs of the
Complaint (paragraphs 79-80) merely recount DEA agent trial
testimony.
Prosecutorial introduction of such testimony is
insufficient for a plausible claim of unconstitutional conduct.
Aguiar’s allegations of conspiracies to engage in unlawful
conduct are also insufficient, and the Court finds no basis for
reconsidering dismissal of such claims without leave to amend.
III. Claims Against DEA Agents
Aguiar also asks the Court to reconsider dismissal of his
claims against Agents Carter and Couture.
The argument with
respect to Carter is that, given the Court’s prior conclusion
about the GPS evidence being harmless, the claims against Carter
set forth in Count Two of the Complaint are not barred by Heck.
The Court rejected this same argument previously.
The Court also
dismissed on the basis of collateral estoppel and qualified
immunity, and thus finds no basis for reconsidering its dismissal
of Agent Carter.
Aguiar next challenges the Court’s dismissal of his claims
against Agent Couture, arguing first that collateral estoppel
does not bar his MySpace claim.
The Court previously found that
this claim was litigated in Aguiar’s Section 2255 proceeding, but
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Aguiar submits that his current claim is not identical.
Aguiar’s instant claim is that Couture searched his MySpace
records and communications without a probable cause warrant.
In
the 2255 proceeding, the Magistrate Judge thoroughly assessed
Aguiar’s assertion that defense counsel was ineffective for
failing to move to suppress the MySpace-related evidence.
Specifically, the Magistrate Judge considered defense counsel’s
explanation that the incriminating evidence was obtained from
Aguiar’s public MySpace page.
Id. (ECF No. 767 at 32).
The
Magistrate Judge also noted that Aguiar had presented arguments
under the Fourth Amendment.
Id. (ECF No. 767 at 33).
Accordingly, the Court sees no basis to reconsider its conclusion
that the issue of a warrantless search was previously-litigated.
Aguiar further challenges the Court’s conclusion that any
unlawful information received from MySpace was not the fault of
the DEA Defendants.
Aguiar alleges in his Complaint that,
consistent with the subpoena issued by Agent Couture seeking
information “without limitation,” MySpace delivered
communications that had been in electronic storage for fewer than
180 days.
As this Court found previously, defense counsel
concluded that the MySpace information in question was publicly
accessible and thus could not be suppressed.
This matter has
therefore been litigated previously, and will not be reversed on
reconsideration.
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IV.
Count 13: Stored Communications Act Claim (“SCA”)
Aguiar’s final request is for reconsideration of the Court’s
conclusion that his claims under the SCA are time-barred.
A
plaintiff bringing a civil action under the SCA must do so within
“two years after the date upon which the claimant first
discovered or had a reasonable opportunity to discover the
violation.”
18 U.S.C. § 2707(f).
Aguiar’s SCA claim is based on
the government’s effort to access his MySpace account.
The
MySpace evidence was introduced by the government at Aguiar’s
trial in 2011.
Consequently, his “reasonable opportunity” to
discover any alleged violation arose in 2011, and his filing of a
civil claim in 2017 was untimely.
Conclusion
For the reasons set forth above, Aguiar’s motion for
reconsideration (ECF No. 117) is denied.
DATED at Burlington, in the District of Vermont, this 21st
day of August, 2019.
/s/William K. Sessions III
William K. Sessions III
District Court Judge
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