PEGESE v. UNITED STATES (2024)

DECISION & ORDER

I. INTRODUCTION

Petitioner-defendant Marion Pegese (“petitioner”) is serving life in federal prison for his role in a pair of armed jewelry story robberies that resulted in the murder of a New Hartford police officer. Petitioner has moved, pro se, for a reduction in his federal sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Dkt. No. 327. Petitioner has also moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Dkt. No. 341.

The United States of America (the “Government”) has opposed relief, Dkt. Nos. 334, 346, and petitioner has replied, Dkt. Nos. 350, 351. The motions will be considered on the basis of the submissions without oral argument.¹

II. BACKGROUND 2

On August 26, 2005, just before 4 o'clock in the afternoon, petitioner, his two co-defendants Robert Ward and Toussaint Davis, and a man named Eric Lane entered Ballew Jewelers in Freehold, New Jersey, forced the employees into a back room at gunpoint, tied them up, and stole $1.8 million in goods.

About six months later, in late February of 2006, petitioner and his two co-defendants began planning a second armed robbery. They conducted internet research on jewelry stores in Utica, New York, and even took a day-long trip from Philadelphia, Pennsylvania to New Hartford, New York, a suburb of Utica, to scope out the Lennon's Jewelers on Commercial Drive.

A few weeks later, on February 27, petitioner and his two co-defendants traveled back to New Hartford. This time they were accompanied by a fourth man named Walter Richardson. The men took two vehicles. That afternoon, they entered the Lennon's Jewelers on Commercial Drive in New Hartford and robbed it at gunpoint. They stole nearly $1 million in merchandise.

The robbers fled in the two vehicles when the cops arrived. Two officers responding to the robbery, Joseph Corr and Ronald Fontaine, pursued one of the vehicles until it crashed into a gasoline pump at high speed. Two of the robbers, Davis and Richardson, exited the crashed vehicle and fled on foot.

Officer Fontaine chased down and arrested Davis. But Officer Corr was shot and killed by Richardson, who then hijacked a truck at gunpoint and fled to Pennsylvania. Richardson was killed the next morning in a firefight with law enforcement agents. Petitioner and Ward initially managed to flee the scene of the robbery in the other vehicle. They were later arrested.

On July 16, 2009, the Government obtained a three-count indictment that charged petitioner and his two co-defendants with (1) conspiracy to interfere with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a); (2) interference with interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. §§ 1951(a) and 2; and (3) murder as a result of possession and discharge of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§ 924(c)(1), 924(j)(1) and pursuant to Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). Dkt. No. 1.

On November 5, 2010, after a twelve-day trial, the jury found petitioner and his co-defendants guilty on all three counts. Dkt. No. 173. Thereafter, Judge Mordue sentenced all three men to concurrent terms of imprisonment of 240 months on Counts One and Two and a lifetime term of imprisonment on Count Three. Dkt. No. 223. The Second Circuit affirmed the convictions and sentences on December 11, 2012, United States v. Ward, 505 F. App'x 18 (2d Cir. 2012) (summary order), and the Supreme Court denied certiorari to petitioner on March 4, 2013, Pegese v. United States, 568 U.S. 1220, 133 S. Ct. 1512, 185 L.Ed.2d 563 (2013).

On February 28, 2014, petitioner moved, through counsel, under 28 U.S.C. § 2255 to vacate, set aside, or correct his federal sentence and for approval of certain investigative services. Dkt. Nos. 250, 255, 269. Those motions were fully briefed and then denied by Judge Mordue on November 30, 2015. Dkt. No. 278. Petitioner appealed but the Second Circuit dismissed the appeal on May 18, 2016. Dkt. No. 292. Thereafter, petitioner moved in the Circuit for leave to file a second or successive § 2255 motion based on an allegedly new rule of constitutional law announced in Carpenter v. United States, 585 U.S. 296, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Dkt. No. 293. Because he could not show that Carpenter had been made retroactive to cases on collateral review, petitioner's motion was denied by the Second Circuit on August 6, 2019. Id.

The pending round of motions were filed in 2022. Dkt. No. 332, 341.

III. DISCUSSION

As an initial matter, petitioner is proceeding pro se. So his submissions must be “liberally construed in his favor,” Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995), and read “to raise the strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (cleaned up). Even so, petitioner still bears the burden of proving his claims by a preponderance of the evidence. Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000). As the Second Circuit has explained, “[a]iry generalities, conclusory assertions[,] and hearsay statements will not suffice” to meet this standard. United States v. Aiello, 814 F.2d 109, 113 (2d Cir. 1987). Nor is a court required to credit factual assertions that are “contradicted by the record in the underlying proceeding.” Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009).

A. Rule 35 Motion for a Sentence Reduction

Petitioner's motion for a sentence reduction claims to be based on newly discovered evidence. Dkt. No. 327. But a review of petitioner's filing shows that it is based on recent developments in constitutional law. Briefly stated, petitioner argues that the Supreme Court has recently held that a criminal offense cannot qualify as a “violent felony” if it only requires a mental state of recklessness. Id. Thus, in petitioner's view, his conviction for conspiracy to commit a Hobbs Act robbery (in Count One) no longer qualifies as a “crime of violence.” Id. According to petitioner, his sentence—particularly his life sentence stemming from his murder conviction on Count Three—should be reduced. See id.

Under Rule 35 of the Federal Rules of Criminal Procedure, “the court may correct a sentence that resulted from arithmetical, technical, or other clear error” within “14 days after sentencing.” Fed. R. Crim. P. 35(a). This is an extremely narrow avenue for relief. As the Second Circuit has cautioned, this error-correction provision “extend[s] only to those cases in which an obvious error or mistake has occurred in the sentence, that is, errors which would almost certainly result in a remand of the case to the trial court for further action.” United States v. Abreu-Cabrera, 64 F.3d 67, 72 (2d Cir. 1995) (Cardamone, J.) (construing predecessor provision of Rule 35).

Upon review, petitioner's Rule 35 motion for a reduction in his sentence must be denied because it is both untimely and meritless. First, petitioner's motion was filed on August 30, 2022, more than a decade after his sentence was orally pronounced by Judge Mordue on July 12, 2011. This decade-plus delay goes well beyond the 14-day time limit imposed by Rule 35, which has been held to be a jurisdictional limitation that sharply precludes Rule 35 relief. See, e.g., United States v. Sarvestani, 297 F.R.D. 228, 229 (S.D.N.Y. 2014) (holding that a “district court lacks jurisdiction to correct a sentence after the fourteen-day period set forth in Rule 35(a) has expired, even where the motion seeking relief is timely filed”).

Second, even assuming it were timely, petitioner's motion would still fail because it is meritless. Broadly construed, petitioner argues that his murder conviction in Count Three is somehow invalid because a recklessness offense cannot qualify as a “crime of violence” under 18 U.S.C. § 924(c). But as the Government explains, the relevant question is whether one of the predicate offenses upon which the murder conviction was based still qualify as a “crime of violence.” See, e.g., United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021), cert. denied, ––– U.S. ––––, 142 S. Ct. 910, 211 L.Ed.2d 612 (2022).

The indictment alleged two distinct predicate offenses: the conspiracy to commit a Hobbs Act robbery (in Count One) and the substantive Hobbs Act robbery (in Count Two). The jury convicted petitioner of both crimes. Dkt. No. 173. At the time of petitioner's conviction on these charges, both offenses qualified as predicate “crimes of violence.”

But recent developments have muddied the waters. As relevant here, the term “crime of violence” is defined in 18 U.S.C. § 924(c)(3) as a felony offense that either:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Until recently, it didn't matter too much how offenses were characterized under these statutory pathways. The “A” clause, which is commonly known as the “force clause” or the “elements clause,” swept in the vast majority of violent conduct. And if it didn't, the “B” clause, also known as the “residual clause” or “risk-of-force clause,” quite often did.

However, in United States v. Davis, the Supreme Court held that the so-called “residual clause” of § 942(c)(3) is unconstitutionally vague. 588 U.S. 445, 470, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019). So it became important to be precise about how certain criminal offenses qualified—or didn't—under the statute. Consequently, in a series of decisions, courts have held that various crimes that were historically understood to qualify as “crimes of violence” no longer did.

For instance, as the Government points out, conspiracy to commit a Hobbs Act robbery is no longer a valid predicate “crime of violence” offense in light of recent legal developments. United States v. Barrett, 937 F.3d 126, 130 (2d Cir. 2019). The same is true of an attempted Hobbs Act robbery, which does not categorically qualify as a “crime of violence” anymore, either. United States v. Taylor, 596 U.S. 845, 142 S. Ct. 2015, 2020, 213 L.Ed.2d 349 (2022).

These legal developments do not afford petitioner any relief. The Second Circuit has recently reaffirmed that a substantive, completed Hobbs Act robbery—such as the one alleged in Count Two of the indictment and for which petitioner was convicted by a jury—continues to qualify as a “crime of violence” under the “elements clause” of § 924(c)(3)(A). United States v. Hill, 890 F.3d 51, 53 (2d Cir. 2018). Aiding and abetting a completed Hobbs Act robbery continues to qualify under the “elements clause” as well. See United States v. McCoy, 58 F.4th 72, 74 (2d Cir. 2023).

Since at least one of the predicate offenses against petitioner remain valid, habeas or other relief is inappropriate. United States v. Walker, 789 F. App'x 241 (2d Cir. 2019) (summary order). Because his Rule 35 motion is clearly untimely and because there is no “clear error” that might be corrected even if it were not, petitioner's motion for a sentence reduction will be denied.

B. 28 U.S.C. § 2255

Petitioner has also moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dkt. No. 341. Petitioner asserts five distinct grounds for relief. In Ground One, petitioner has re-framed his argument that recent Supreme Court holdings on the question of what conduct qualifies as a “crime of violence” work together to invalidate his murder conviction. Id. In Ground Two, he argues that certain witness testimony at trial was improper. Id. In Ground Three, he argues that the Government destroyed certain exculpatory evidence connected with the alleged getaway car. Id. In Ground Four, he asserts that a witness gave improper identification testimony. Id. In Ground Five, he contends that the Government withheld some surveillance video that would have exonerated him if it had been disclosed earlier in the trial. Id.

Congress enacted § 2255 in 1948 to alleviate a practical problem: federal courts in certain judicial districts were getting swamped with habeas corpus petitions. United States v. Hayman, 342 U.S. 205, 213–14, 72 S.Ct. 263, 96 L.Ed. 232 (1952). This was an injury the judiciary had sort of inflicted on itself: the Supreme Court had been aggressively expanding the habeas corpus remedy, which meant that a growing number of prisoners were filing habeas corpus petitions. Id.

Because the traditional writ of habeas corpus acts against the prisoner's warden, federal courts in the few judicial districts with federal prisons were soon overwhelmed. Hayman, 342 U.S. at 214 & n.18, 72 S.Ct. 263. So Congress created a broad, habeas-type statutory remedy that would spread out this ever-growing workload by returning jurisdiction over challenges to federal convictions to the sentencing court. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979).

Section 2255 provides that a “prisoner in custody under sentence of a [federal] court ․ claiming the right to be released ․ may move the court which imposed the sentence to vacate, set aside or correct the sentence.” But the statute does not operate as a substitute for a direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The magnitude and manner of legal or factual error that might warrant relief on a direct appeal “will not necessarily support” a § 2255 motion. Addonizio, 442 U.S. at 184, 99 S.Ct. 2235.

The statute tries to strike the right balance between the value of error-correction and the need for finality in criminal cases. United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995). Accordingly, relief is available “only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.’ ” Id. (quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

A sentencing court presented with a § 2255 motion must follow the Rules Governing § 2255 Proceedings for the United States District Courts. Under those Rules, the court can decide meritless claims on the basis of the papers, with or without a response from the Government. Rule 4(b); Rule 7(a). If a claim requires factual development, the court can order discovery or expand the paper record. Rule 6; Rule 7. Thereafter, the court is expected to hold an evidentiary hearing “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” § 2255(b). As the Second Circuit has explained:

The procedure for determining whether a hearing is necessary is in part analogous to, but in part different from, a summary judgment proceeding. The petitioner's motion sets forth his or her legal and factual claims, accompanied by relevant exhibits: e.g., an affidavit from the petitioner or others asserting relevant facts within their personal knowledge and/or identifying other sources of relevant evidence. The district court reviews those materials and relevant portions of the record in the underlying criminal proceeding. The court then determines whether, viewing the evidentiary proffers, where credible, and record in the light most favorable to the petition, the petitioner, who has the burden, may be able to establish at a hearing a prima facie case for relief. If material facts are in dispute, a hearing should usually be held, and relevant findings of fact made.

Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (cleaned up).

As a threshold matter, petitioner's § 2255 motion runs into a jurisdictional obstacle. Generally speaking, a trial court does not have jurisdiction to hear a “second or successive motion” unless the court of appeals has certified that the second petition contains either newly discovered evidence or a new rule of constitutional law made retroactive on collateral review that was previously unavailable. § 2255(h).

Notably, this gatekeeping mechanism does not apply every single time a petitioner files more than one motion for relief. For instance, a prior habeas petition will not count toward this limit if it was only dismissed on procedural grounds, Thai v. United States, 391 F.3d 491, 495 (2d Cir. 2004), or if the first motion attacked a different judgment of conviction, Vasquez v. Parrott, 318 F.3d 387, 389–90 (2d Cir. 2003).

However, those kind of concerns are inapplicable in this case. In early 2014, petitioner filed a counseled § 2255 motion after exhausting his other options on a direct appeal. Dkt. No. 250, 255. That motion attacked the judgment of conviction entered on July 21, 2011. Dkt. No. 223. It was denied on the merits by Judge Mordue on November 30, 2015. Dkt. No. 278.

Petitioner's latest § 2255 motion is a second attack on the same judgment of conviction. See Dkt. No. 341. In the Second Circuit, that is enough to find that it is “second or successive.” See, e.g., Martinez v. United States, 2019 WL 1569813, at *3 (S.D.N.Y. Apr. 11, 2019); but see Stewart v. United States, 646 F.3d 856 (11th Cir. 2011) (concluding second § 2255 motion did not qualify as “second or successive” where it raised legal claims not previously available).

Where, as here, the petitioner has not received permission to file a “second or successive” § 2255 motion from the court of appeals, the court is ordinarily supposed to transfer the motion to the Second Circuit in the interest of justice to give the movant a chance to obtain such authorization. § 2244(b)(3); see also 28 U.S.C. § 1631. “However, transfer is unnecessary where the second or successive habeas corpus application is wholly without merit.” Minaya v. United States, 41 F. Supp. 3d 343, 345 (S.D.N.Y. 2014).

Upon review, petitioner's § 2255 motion can be denied without a transfer because it is wholly meritless. First, it is untimely: under § 2255(f), there is a one-year limitations period that runs from the latest of (1) the date on which petitioner's judgment of conviction became final; (2) the date on which certain impediments were removed; (3) the date on which the right asserted was first recognized by the Supreme Court; or (4) the date on which facts supporting the habeas claim could have been discovered.

The only possible argument to be made in support of petitioner's current motion is that § 2255(f)(3)—the “initial recognition clause”—applies because his § 2255 motion relies on the Supreme Court's “initial recognition” that the “residual clause” of § 924(c)(3)(B) is unconstitutionally vague. But as noted supra, that conclusion stems from United States v. Davis, which was decided on June 24, 2019. Even though Davis is a new rule of constitutional law that has since been recognized as being retroactive to cases on collateral review, see Hall v. United States, 58 F.4th 55, 60 (2d Cir. 2023), petitioner's motion was not filed until December 9, 2022, a date well outside of § 2255(f)(3)’s one-year limitations period.³ Accordingly, petitioner's § 2255 motion must be denied as untimely.

Even assuming otherwise, petitioner's various arguments are meritless for the reasons discussed below.

1. Ground One

In Ground One, petitioner argues that the predicate offenses (alleged in Counts One and Two of the indictment) for his conviction on Count Three no longer qualify as “crimes of violence.” Dkt. No. 341. According to petitioner:

Courts are required to apply the categorical approach when interpreting the elements clause. Under that approach, a criminal who commits a violent crime does not commit a crime of violence if a hypothetical criminal could commit the same offense without satisfying 924(c)’s physical force requirement. Therefore, under the elements clause precedents[,] the predicate crime of [ ] 924(j) is not a crime of violence. Therefore my robbery is not, and the 924(j) should be vacated.

Dkt. No. 341 at 5.

Petitioner's argument must be rejected. As noted supra, the indictment charged two distinct predicates: conspiracy to commit Hobbs Act robbery (Count One) and substantive Hobbs Act robbery (in Count Two). The jury convicted petitioner of both crimes. Dkt. No. 173. Although a conspiracy to commit a Hobbs Act robbery might no longer qualify as a valid predicate, Barrett, 937 F.3d at 130, a completed, substantive Hobbs Act robbery still qualifies as a “crime of violence” under the elements clause, Hill, 890 F.3d at 53. So petitioner is not entitled to any habeas relief on this ground.

Nor is there any merit to petitioner's argument, raised for the first time in his reply brief, that “[t]here is a possibility that Pegese's § 924(c)(1) and (j)(1) conviction in Count Three rested solely on the Hobbs Act robbery conspiracy that, after Davis, is no longer a valid § 924(c) predicate.” Judge Mordue rejected a similar argument in a decision denying a habeas motion made by one of petitioner's co-defendants. See Davis v. United States, 2021 WL 8533103 (N.D.N.Y. Sept. 29, 2021), aff'd, 2024 WL 980637 (2d Cir. Mar. 7, 2024) (“Toussaint Davis”). There, Judge Mordue wrote:

At the conclusion of trial, the Court charged the jury regarding Count 3 as follows:

The first element the government must prove is that the defendant committed a crime of violence for which he might be prosecuted in a court of the United States. The defendants are charged in Counts 1 and 2 of the indictment with committing the crimes of conspiracy to interfere with interstate commerce by robbery, and interference with interstate commerce by robbery. I instruct you that these are crimes of violence. However, it is for you to determine that the government has proven that a particular defendant committed one or both of the crimes as charged in Counts 1 and 2.

The jury found Petitioner guilty on all Counts: 1) conspiracy to interfere with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a); 2) interference with interstate commerce by robbery, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; and 3) murder as a result of possession and discharge of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1), (j)(1) and United States v. Pinkerton [Pinkerton v. United States], 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946).

From this record, the only reasonable conclusion is that the jury found that both Counts 1 and 2 were crimes of violence that could be used to convict on Count 3. There is no doubt in this case as to which offense was found to be a crime of violence—because the jury was specifically instructed that both Counts 1 and 2 satisfied that standard. Once the jury convicted Petitioner on Counts 1 and 2, each offense supported a finding that Petitioner committed murder as a result of possession and discharge of a firearm in furtherance of a crime of violence.

Petitioner is correct that Count 1, the robbery conspiracy conviction, can no longer be considered a crime of violence because it fell within the now-invalid residual clause of 18 U.S.C. § 924(c). On the other hand, Petitioner's conviction on Count 2, the substantive robbery charge, remains a crime of violence because it falls within the force clause of § 924(c).

However, Petitioner argues that his conviction on Count 3 should be vacated “because it is impossible to tell whether the jury's verdict rested on a valid basis.” This argument invokes the “general verdict” rule, which states that a “[a] conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one.” Hedgpeth v. Pulido, 555 U.S. 57, 58 [129 S.Ct. 530, 172 L.Ed.2d 388] (2008). Thus, Petitioner claims that his conviction on Count 3 must be set aside because it is impossible to determine whether the jury found that Count 1 (residual clause) or Count 2 (force clause) counted as the predicate crime of violence.

The Court finds that any error in this regard was harmless because, even though Count 1 does not count as a crime of violence, the jury had a separate and sound predicate crime of violence in Count 2—the substantive robbery charge. There is no reasonable interpretation of the facts under which the jury, having found that Petitioner committed a robbery, would have found that a firearm was used in the conspiracy to commit robbery but not in the robbery itself. As discussed above, the facts at trial showed that a firearm was used during the robbery of Lennon's Jewelers and then later to aid in the escape by shooting and killing Officer Corr. Accordingly, the Court can readily conclude that the jury found Petitioner guilty on Count 3 using the predicate crime of violence from Count 2, and they would have done so had Count 1 not been charged at all. Because Petitioner cannot show any prejudice, his general verdict challenge must fail. See Hedgpeth, 555 U.S. at 58 [129 S.Ct. 530].

Toussaint Davis, 2021 WL 8533103, at *4–5 (cleaned up). The same analysis and conclusions apply to petitioner's challenge in this pending § 2255 motion.

In sum, after reviewing petitioner's submissions and citations, the Court readily concludes that petitioner's conviction for the substantive, completed Hobbs Act robbery in Count Two still qualifies as a valid predicate offense that supports his conviction and sentence on Count Three. See, e.g., United States v. Walker, 789 F. App'x 241 (2d Cir. 2019) (summary order), cert. denied, ––– U.S. ––––, 140 S. Ct. 979, 206 L.Ed.2d 133 (2020) (rejecting similar argument); United States v. Vasquez, 672 F. App'x 56 (2d Cir. 2016) (summary order) (same).

2. Grounds Two through Five

The Government points out that the claims in Grounds Two through Five of petitioner's § 2255 motion were previously raised and addressed on direct appeal or in petitioner's previous habeas motion. Dkt. No. 346 at 6. In his reply memo, petitioner argues these claims “can and should be considered under” Buck v. Davis, 580 U.S. 100, 137 S. Ct. 759, 777–78, 197 L.Ed.2d 1 (2017), and Rule 60(b)(6) of the Federal Rules of Civil Procedure. See Dkt. No. 350 at 5.

Rule 60(b)(6) is the “catchall category” that “permits a court to reopen a judgment for ‘any other reason that justifies relief.’ ” Buck, 137 S. Ct. at 777–78 (cleaned up). Importantly, “relief under Rule 60(b)(6) is available only in ‘extraordinary circumstances,’ ” which “will rarely occur in the habeas context.” Id. (quoting Gonzalez v. Crosby, 545 U.S. 524, 535, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005)).

Measured against this general standard, petitioner's remaining grounds for § 2255 relief must be dismissed as meritless. Even liberally construed, these arguments boil down to general challenges to the substance of the Second Circuit's decision on petitioner's direct appeal or to aspects of Judge Mordue's decision that rejected petitioner's counseled § 2255 motion.

Petitioner's dissatisfaction with these prior decisions does not amount to the kind of extraordinary circumstances that might warrant vacatur. Cf. Cabrera v. United States, 2019 WL 3936877, at *2 (S.D.N.Y. Aug. 19, 2019) (“Because Cabrera's motion attacks his underlying conviction, not the integrity of previous habeas proceedings, we deny his motion outright as beyond the scope of Rule 60.”). Accordingly, petitioner's Rule 60(b)(6) motion will be denied. See Harris v. United States, 367 F.3d 74, 82 (2d Cir. 2004).

Further, to the extent petitioner's Rule 60(b) motion might be otherwise cognizable, it is untimely. Motions under Rule 60(b)(6) must be made “within a reasonable time.” Fed. R. Civ. P. 60(c)(1). To assess timeliness, the court “ ‘must scrutinize the particular circumstances of the case, and balance the interest in finality with the reasons for delay.’ ” Carbone v. Cunningham, 857 F. Supp. 2d 486, 488 (S.D.N.Y. 2012) (quoting PRC Harris, Inc. v. Boeing Co., 700 F.2d 894, 897 (2d Cir. 1983)).

Petitioner's conviction was affirmed on December 11, 2012, Dkt. No. 249, and ten years elapsed before he brought this motion, Dkt. No. 341. He has offered no explanation for this long delay. See, e.g., Kellogg v. Strack, 269 F.3d 100, 104 (2d Cir. 2001) (finding that 26 months “constitutes a patently unreasonable delay absent mitigating circumstances”).

Even putting these Rule 60(b) issues aside, petitioner's remaining grounds for relief have already been raised and rejected on the merits. In Ground Two, petitioner argues that certain eyewitness testimony from the Shkanes was improper. But the Second Circuit rejected this argument when it was raised in petitioner's direct appeal. Ward, 505 F. App'x at 23. So it is barred by the Mandate Rule now. See, e.g., Jones v. United States, 2021 WL 311279, at *9 (D. Conn. Jan. 29, 2021).

In Ground Three, petitioner argues that the Government intentionally destroyed exculpatory evidence connected with the getaway car used in the Lennon's Jewelers robbery. But this claim is procedurally defaulted because it was not raised on direct appeal. See, e.g., Gupta v. United States, 913 F.3d 81, 84 (2d Cir. 2019) (requiring “cause and actual prejudice” or a showing of “actual innocence” in case of procedural default). Petitioner has not made a threshold showing cause, prejudice, or actual innocence that might warrant further proceedings on an expanded record in connection with this particular argument. That is especially so where, as here, petitioner already raised this argument in his prior, counseled § 2255 motion. Dkt. No. 278.

In Ground Four, petitioner argues that a Government witness gave some improper testimony that identified him as the person to whom she rented a room the night of the Lennon's store robbery. But as with Ground Three, this claim is procedurally defaulted because it existed at the time of trial but was not raised on direct review. Finally, in Ground Five, petitioner argues that the Government withheld a surveillance video that would have exonerated him if it had been disclosed earlier in the trial. Again, though, Judge Mordue considered and rejected the relevance of this video tape evidence in the prior round of § 2255 motion practice. In doing so, Judge Mordue—who presided over the trial—concluded that the decision not to introduce the video at trial constituted sound strategy by petitioner's counsel. Dkt. No. 278.

IV. CONCLUSION

In sum, petitioner's Rule 35 and 28 U.S.C. § 2255 motions are untimely and meritless.

Therefore, it is

ORDERED that

1. Petitioner's motion for a sentence reduction (Dkt. No. 327) is DENIED;

2. Petitioner's 28 U.S.C. § 2255 motion (Dkt. No. 341) is DENIED; and

3. No Certificate of Appealability shall be issued.

IT IS SO ORDERED.

FOOTNOTES

1.   U.S. District Judge Norman A. Mordue presided over petitioner's trial, handled the post-trial motion practice, pronounced petitioner's sentence, and adjudicated a prior round of counseled habeas corpus proceedings. Petitioner's criminal case was reassigned to Senior U.S. District Judge Thomas J. McAvoy following Judge Mordue's death, Dkt. No. 345, but was recently given over to this Court for a decision on the pending motions, Dkt. No. 355.

3.   It is unusual, but the Supreme Court has held that § 2255(f)(3)’s one-year limitations period begins running from the date on which the new right is first recognized than the (typically later) date on which the new right is recognized as retroactive. Nunez v. United States, 954 F.3d 465, 471 (2d Cir. 2020).

DAVID N. HURD, United States District Judge