USA v. BRICHETTO

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
THOMAS PAUL BRICHETTO, JR., )
)
Movant, )
)
v. ) No. 2:03-CR-00024-GZS
)
)
UNITED STATES, )
)
Respondent )
RECOMMENDED DECISION
Thomas Paul Brichetto, Jr., has filed a motion pursuant to Rule 60(b)(6) and Rule
60(d)(1) of the Federal Rules of Civil Procedure, requesting that this court re-open and
reconsider the motion he filed under 28 U.S.C. § 2255, which motion the court denied in
December 2006.1 Brichetto alleges that constitutional error underlies his 32-year sentence and
that a grave miscarriage of justice will result if he is not heard. (Motion to Re-Open, ECF No.
151.) Additionally, Brichetto has filed a motion requesting that I recuse myself from considering
his Rule 60 motion. In support of the recusal motion Brichetto contends, inaccurately, that I
previously recused in connection with his original section 2255 motion. (Motion for Recusal,
ECF No. 159.)
The motion requesting my recusal is denied. As for the merits of the motion to reopen,
although it is styled a motion under Rule 60, in fact it amounts to a second or successive section
2255 motion. Consequently, this court lacks jurisdiction to consider the motion until such time
as a panel of the First Circuit Court of Appeals should certify that his motion raises a new rule of
1 The prior motion was docketed as case number 2:06-CV-00057-GC.
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constitutional law, previously unavailable and made retroactive to cases on collateral review by
the Supreme Court. 28 U.S.C. §§ 2244(a), 2255(h)(2).2
BACKGROUND
On January 5, 2004, a jury found Brichetto guilty of violating 18 U.S.C. §§ 2113(a),
2113(d), and 2 (count I—bank robbery and aiding and abetting bank robbery); guilty of
violating 18 U.S.C. § 924(c)(1)(A)(ii) (count II—using, carrying, and brandishing a firearm
during and in relation to the commission of a violent felony); and not guilty of violating 18
U.S.C. §§ 922(g)(1) and 924(e) (count III—felon in possession of a firearm). On May 19, 2004,
the court entered judgment, imposing a 300-month term of imprisonment on count I and an 84-
month term of imprisonment on count II, to be served concurrently. (Judgment, ECF No. 119.)
In a memorandum of sentencing judgment, the court concluded that Brichetto was convicted of
more than two prior felony crimes of violence and met the additional requirements of the career
offender guideline found in United States Sentencing Guidelines § 4B1.1. Consequently, the
court elevated the guidelines offense level to 34 instead of using the otherwise applicable
adjusted offense level of 26. (Mem. of Sentencing Judgment, ECF No. 119.) The court found a
criminal history category of VI, resulting in a guideline range for count I of between 262 and 327
months. (Id.)
On direct appeal Brichetto challenged the court’s failure to direct a verdict in his favor or
grant a new trial based on the seeming inconsistency between the jury’s verdict concerning count
II and count III. The Court of Appeals affirmed the convictions. (ECF No. 130.)
On March 13, 2006, Brichetto filed his first motion to vacate, set aside, or correct his
sentence pursuant to 29 U.S.C. § 2255. (See Case No. 2:06-CV-00057-GC.) On April 24, 2006,
2 Newly discovered evidence can also support a second or successive motion, 28 U.S.C. § 2255(h)(1), but
Brichetto’s motion to reopen does not suggest the existence of such evidence.
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after I issued an order instructing the United States to answer Brichetto’s motion, Brichetto filed
a motion for my recusal, complaining that he felt I exhibited “prejudice and bias” years earlier
when I sentenced him, as a state court judge, for violation of probation and when I ruled against
him in connection with a post-conviction review proceeding. (ECF No. 5.) Brichetto’s motion
for my recusal was never granted. Instead, Judge Carter mooted the motion based on his
decision to simply handle the habeas motion directly, without referring it for report and
recommendation. (ECF No. 6.) Judge Carter denied Brichetto’s section 2255 motion on the
merits, rejecting, among other arguments, an assertion that he had erred in treating certain prior
convictions as crimes of violence and not submitting the question to the jury. The court’s
primary rationale was that Brichetto failed to preserve the arguments on direct appeal and failed
to argue any exceptions to the procedural default rule. (ECF No. 12.) However, as to a claim of
ineffective assistance of counsel, the court addressed the merits of Brichetto’s assertion that his
counsel erred by failing to argue that a Maine burglary conviction was not a crime of violence.
Relying on First Circuit precedent that has since been overturned3, the court concluded that the
law was clear that a conviction under Maine’s burglary statute amounted to a crime of violence
and that, consequently, counsel was not ineffective for failing to argue otherwise. (Id. at 9-10.)
On February 4, 2011, Brichetto filed a motion for writ of error coram nobis, which can be
found on the instant docket, case number 2:03-CR-00024-GZS. (ECF No. 134.) On February
11, 2011, I issued a report and recommended decision advising the court to summarily dismiss
the motion because it amounted to a second or successive habeas petition and the court lacked
jurisdiction to hear it. (ECF No. 138.) The court agreed and adopted the recommendation.
(ECF No. 142.) The Court of Appeals affirmed the dismissal in June 2011 in the absence of a
3 United States v. Rodriguez, 311 F.3d 435 (1st Cir. 2002), cert. denied, 538 U.S. 937 (2003), abrogated by
United States v. Giggey, 551 F.3d 27 (1st Cir. 2008) (overruling United States v. Sawyer, 144 F.3d 191 (1st Cir.
1998), and United States v. Fiore, 983 F.2d 1 (1st Cir. 1992), cert. denied, 507 U.S. 1024 (1993)).
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showing by Brichetto that reasonable jurists could find the dismissal debatable or wrong. (ECF
No. 149.)
Brichetto filed his current motion on July 8, 2013. (ECF No. 151.) In this motion he
requests that the court reopen the section 2255 motion he filed in March 2006, pursuant to Rule
60(b) and Rule 60(d) of the Federal Rules of Civil Procedure, based on legal developments that
transpired in the interim, discussed below.
DISCUSSION
For reasons that follow, the motion for recusal is denied and the court is advised to
dismiss Brichetto’s Rule 60 motion.
A. Motion for Recusal (ECF No. 159)
The law requires that a judicial officer recuse, or disqualify himself or herself, “in any
proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The
statute lists additional, specific circumstances where disqualification is mandatory, including
circumstances involving personal bias or prejudice toward a party. Id. § 455(b)(1). “[J]udicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v.
United States, 510 U.S. 540, 555 (1994). Moreover, “opinions formed by the judge on the basis
of facts introduced or events occurring in the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-
seated favoritism or antagonism that would make fair judgment impossible.” Id. “[J]udicial
remarks during the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id.;
See also United States v. Pulido, 566 F.3d 52, 64 (1st Cir. 2009) (finding no appearance of
partiality in judge’s assessment in a related case that the defendant was “thoroughly corrupt” and
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judge’s subsequent statement at the defendant’s sentencing that the defendant was “utterly
without redeeming qualities”).
Contrary to Brichetto’s representation, there was no prior recusal on my part. A review
of the docket entries indicates merely that Brichetto sought my recusal when he first filed a
section 2255 motion. Brichetto’s motion was never granted. Rather, it was mooted when Judge
Carter indicated that he would address Brichetto’s motion directly. Thereafter, Judge Carter
issued an order on Brichetto’s original section 2255 motion, without referring the matter for
report and recommendation. Subsequently, I issued a recommended decision in connection with
Brichetto’s petition for a writ of error coram nobis. (ECF No. 138.) There is no reason why I
should not have done so. Nor am I aware of any grounds upon which I should recuse myself
from considering Brichetto’s current motion to reopen his section 2255 motion. I bear no bias or
prejudice toward Brichetto and see no reasonable basis upon which my impartiality could be
questioned.
Brichetto claims that I presided, as a state court judge, over a sentencing hearing
associated with a violation of probation, conducted in 1996, and a post-conviction review
proceeding. (Aff. in Support of 2006 Recusal Mot., ¶¶ 8-11, Case No. 2:06-cv-00057, ECF No.
5-1.) Although I have no personal recollection of these events, the fact that I presided over state
proceedings involving Brichetto may well be true. In any event, that fact in no way undermines
my ability to consider, impartially, the current pleadings, which arise from a 2003 conviction
before Judge Carter on unrelated federal charges.
B. Motion to Re-Open (ECF No. 151)
Brichetto’s latest filing is subject to a statutory bar that restricts the ability of prisoners to
pursue multiple habeas motions or petitions challenging the same federal conviction or sentence.
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In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub.
L. No. 104-132, 110 Stat. 1214, which, among other things, introduced a bar against a federal
prisoner filing a second or successive habeas motion absent certification by the appropriate court
of appeals that the motion contained either (1) newly discovered evidence capable of establishing
by a clear and convincing evidentiary standard that no reasonable factfinder would have found
the prisoner guilty or (2) “a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h)
(referencing the certification requirement of 28 U.S.C. § 2244). Pursuant to this statutory
provision, a district court lacks jurisdiction to address the merits of a second or successive habeas
motion attacking the constitutionality of a federal conviction or sentence “unless and until the
court of appeals has decreed that it may go forward.” Trenkler v. United States, 536 F.3d 85, 96
(1st Cir. 2008) (quoting Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997)). See also 28
U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.”); Rules Governing Section 2255
Cases, Rule 9 (imposing the same requirement).
Brichetto attempts to avoid the jurisdictional bar raised by section 2255(h) by advancing
his motion not as a 2255 motion, but rather as a Rule 60 motion for relief from Judge Carter’s
2006 order denying his initial section 2255 motion. Brichetto relies on subsections (b)(6) and (d)
of Rule 60, which permit the court to “relieve a party . . . from a final judgment” or “entertain an
independent action” for that purpose for, essentially, any reason not otherwise identified in the
Rule. Fed. R. Civ. P. 60(b), (d). However, the Rule runs headlong into the section 2255(h) bar
because Brichetto’s Rule 60 motion is, in substance, a renewed section 2255(a) motion asserting
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that his sentence was imposed in violation of the Constitution or was in excess of the maximum
authorized by law.
“Any motion filed in the district court that imposed the sentence, and substantively within
the scope of § 2255 [paragraph] 1, is a motion under § 2255, no matter what title the prisoner
plasters on the cover.” Trenkler, 536 F.3d at 97 (emphasis in original) (quoting Melton v. United
States, 359 F.3d 855, 857 (7th Cir. 2004)). In fact, the First Circuit Court of Appeals has
pointedly held that a Rule 60(b) motion challenging the constitutionality of an underlying
conviction or sentence should be treated as a second or successive filing under the AEDPA
where the predicate for the Rule 60(b) motion “constitutes a direct challenge to the
constitutionality of the underlying conviction.” Munoz v. United States, 331 F.3d 151, 152 (1st
Cir. 2003) (per curiam) (involving a 2255 motion); Rodwell v. Pepe, 324 F.3d 66, 70 (1st Cir.
2003) (involving a 2254 petition).
Brichetto’s Rule 60 motion is predicated on a change in circuit precedent related to
whether a non-residential burglary amounts to a crime of violence under sentencing guideline
4B1.1 (the career offender guideline), see United States v. Giggey, 551 F.3d 27, 28 (1st Cir.
2008) (en banc) (holding that such burglaries are not per se crimes of violence and that
determination of the issue “turns on the application of a categorical approach under §
4B1.2(a)(2)’s residual clause”), and a recent Supreme Court opinion related to whether a
California burglary conviction could be treated as a “violent felony” under the Armed Career
Criminal Act based on application of a “modified categorical approach,” Descamps v. United
States, 133 S. Ct. 2276, 2293 (2013) (holding that the modified categorical approach amounted
to improper judicial factfinding because the California burglary statute contained a single,
indivisible set of elements that did not include unlawful entry, a generic burglary element, such
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that a conviction under the statute “is never for generic burglary”). Brichetto believes that if the
teachings of Descamps and Giggey were retroactively applied to his sentencing, then none of his
non-residential burglary predicates4 would be a crime of violence and he might achieve a
substantially reduced sentence by avoiding the career offender enhancement. (Motion to Reopen
at 3-7.) The argument is clearly a direct challenge to the constitutionality and legality of the
sentence imposed by the court and, therefore, should be treated as a second or successive filing
under the AEDPA.5
CONCLUSION
Brichetto’s motion for recusal (ECF No. 159) is denied. As for his motion to reopen
(ECF No. 151), I recommend that the Court deny the motion without prejudice to Brichetto’s
right to file a new 28 U.S.C. § 2255 motion should he ever obtain the First Circuit Court of
Appeal’s certification to do so. I further recommend that a certificate of appealability should not
issue in the event Brichetto files a notice of appeal because there is no substantial showing of the
denial of a constitutional right within the meaning of 28 U.S.C. § 2253(c).
NOTICE
A party may file objections to those specified portions of a magistrate
judge's report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, within fourteen (14) days of being
served with a copy thereof. A responsive memorandum shall be filed within
fourteen (14) days after the filing of the objection.
4 It is not entirely clear how many such burglaries are at issue, but it appears there was at least one. Nor is it
clear, or necessary to determine at this time, whether there were sufficient other convictions in Brichetto’s criminal
history to support the career offender status.
5 In a post-reply filing dated August 26, 2013 (ECF No. 161), Brichetto asks that the court take judicial
notice of United States v. Edwards, ___ F.3d ___, 2013 U.S. App. Lexis 16936, 2013 WL 4105532 (9th Cir. Aug. 8,
2013), in which, he says, the Ninth Circuit invoked its authority under Rule 60(b) to reopen a habeas proceeding and
remand for resentencing based on application of Descamps. In fact, the Edwards Court addressed a Descamps issue
on direct appeal. The Court’s opinion has nothing whatsoever to say about second or successive collateral attacks
disguised as Rule 60(b) motions.
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Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court's order.
August 28, 2013 /s/ Margaret J. Kravchuk
U.S. Magistrate Judge
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