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Viola v. United States

United States District Court, D. Connecticut

April 26, 2016

GREGORY VIOLA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

MEMORANDUM OF DECISION DENYING PETITIONER’S MOTIONS FOR DISCOVERY AND AN ORDER TO SHOW CAUSE [DKT. ## 11, 18, 19, 30-32]

Hon. Vanessa L. Bryant United States District Judge.

Petitioner, Gregory Viola (“Viola”), moves this Court to order the production of a host of discovery in support of his habeas petition and to issue an order to show cause. For the reasons that follow, the Petitioner’s motions are DENIED.

I. Background

On February 1, 2012, Viola pled guilty to two counts of mail fraud, in violation of 18 U.S.C. § 1341. [Dkt. #1, Pet’r’s Mot. to Vacate at 1]. He was sentenced on October 4, 2012. [Id.]. Viola appealed his sentence, which was affirmed by the Second Circuit on February 10, 2014. [Id. at 2]. Following the denial of his appeal, on November 17, 2014, Viola filed a petition for certiorari, which was also denied. [Id.]. On January 29, 2015, Viola filed the first of several motions for a new trial, all of which were denied. [Id. at 2-3]. The denials were upheld on appeal. See U.S. v. Viola, No. 3:12-cr-00025 (D. Conn. filed Aug. 11, 2011) (Dkt. # 102).

On September 22, 2015, Viola filed the instant motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255. See [Dkt. #1, Pet’r’s Mot. to Vacate]. In it, Viola raises several grounds for relief: ineffective assistance of counsel, violations of his right to procedural due process, and violations of his Sixth Amendment rights. See [id. at 5-9]. In connection with his motion, Viola now moves for an order requiring the production of “[a]ll e-mails, text messages, [and] written correspondence” relating to his criminal prosecution, as well as all “phone records relating to calls involving the defendant” from each of the attorneys who represented him in the course of this case and from one of the government attorneys who prosecuted him, spanning the period of July 8, 2011 to the present time. [Dkt. #11, Pet’r’s Mot. for Disc. at 1-2]. In support of his request, Viola contends that each of his attorneys was, for different reasons, ineffective, and that one of his attorneys, James H. Pickerstein, conspired with the Government to secure his conviction. [Id. at 2; Dkt. #1, Pet’r’s Mot. to Vacate at 38-39]. Specifically, Viola contends that he originally hired Pickerstein, who “hand-picked” the government attorney assigned to the case to prosecute him because Pickerstein believed Viola would be able to pay a large fee in exchange for a favorable outcome. [Dkt. #1, Pet’r’s Mot. to Vacate at 38].[1] When Pickerstein determined that Viola could no longer afford to pay his fees, Viola maintains that Pickerstein failed to properly defend him. [Id.]. Viola bases his theory on the fact that Mr. Pickerstein pled guilty in federal court to one count of mail fraud in connection with the theft of over $600, 000 from his clients’ trust accounts. [Dkt. #18, Pet’r’s Mot. to Amend and Supplement, at 1]. Accordingly, Viola also seeks the docket sheet and “all the discovery provided” in connection with Pickerstein’s guilty plea. [Id.]. Finally, Viola moves for an order to show cause as to the appointment of Mr. Pickerstein as CJA counsel for his case. [Dkt. #19, Pet’r’s Mot. for Order to Show Cause at 1]. Viola alleges that he met with Pickerstein for a free consultation prior to Pickerstein’s appointment, that he could not afford Pickerstein’s services, and that Pickerstein was then appointed as CJA counsel. [Id.].[2]

As for his other attorneys, Viola maintains that Attorney Green failed to negotiate a fair and reasonable plea agreement and that he and the Government assured him that he would receive a reasonable sentence, which Viola believed would be no more than 24 months. [Dkt. #1, Pet’r’s Mot. to Vacate at 21]. He further contends that Attorney Woo ignored favorable evidence and spoke harshly during client meetings. [Id. at 39-42]. Viola does not make any specific allegations against Attorney Einhorn, from whom he also seeks discovery.

II. Legal Standard and Analysis

“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997); see also Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009). Instead, Rule 6(a) of the Rules Governing Section 2255 Cases provides that “[a] judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Criminal Procedure or Civil Procedure, or in accordance with the practices and principles of law.” 28 U.S.C. § 2255 Rule 6(a). A petitioner satisfies this “good cause” standard when “‘specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief.” Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 300 (1969)). “Otherwise, where a petitioner's allegations do not establish a prima facie case for relief, discovery need not be ordered.” Capalbo v. United States, Nos. 10 Civ. 2563 (RJH) (JLC), 02 Cr. 1237 (RJH), 2012 WL 611539, at *2 (S.D.N.Y. Feb. 24, 2012) (citing Evans v. Miller, No. 04 Civ. 9494(DAB) (DFE), 2008 WL 759357, at *2 (S.D.N.Y. Mar. 21, 2008) (citation omitted)). “Generalized statements regarding the possible existence of discoverable material do not constitute good cause.” Id. at *3 (citing Renis v. Thomas, No. 02 Civ. 9256(DAB)(RLE), 2003 WL 22358799, at **1-2 (S.D.N.Y. Oct. 16, 2003)). Similarly, “[a] court may deny a petitioner's request for discovery ‘where the petitioner provides no specific evidence that the requested discovery would support his habeas corpus petition.’” Ruine v. Walsh, No. 00 Civ. 3798 (RWS), 2005 WL 1668855, at *6 (S.D.N.Y. July 14, 2005) (quoting Hirschfeld v. Comm'r of the Div. of Parole, 215 F.R.D. 464, 465 (S.D.N.Y.2003)). Relatedly, “[w]here the request for discovery is a mere fishing expedition, the court will not grant it.” Corines v. Superintendent, Otisville Corr. Facility, No. 05-CV-2056 (NGG) (SMG), 2008 WL 4831729, at *2 (E.D.N.Y. Nov. 6, 2008) (citing Perez v. U.S., 378 F.Supp.2d 150, 157 (E.D.N.Y. 2005)).

A. Viola Does Not Make a Showing of Good Cause Sufficient to Warrant the Production of Communications From His Prior Attorneys and the Government

None of the allegations Viola raises in his motions are sufficient to entitle him to the sweeping discovery he requests. While specific factual allegations of a conspiracy between the prosecution and defense counsel may well warrant discovery, Viola offers only unsubstantiated speculation of such a conspiracy, based on the facts that his former counsel, Attorney Pickerstein, pled guilty to taking client funds and was once a member of the Connecticut U.S. Attorney’s Office. Viola offers no support for his allegations that Pickerstein was involved in the selection of the government attorneys assigned to prosecute his case, or that Pickerstein’s presence influenced either the manner in which the Government pursued it or the terms of the plea agreement. Indeed, the Government’s pursuit of criminal charges against Pickerstein and Pickerstein’s subsequent guilty plea would appear to significantly weaken Viola’s theory of collusion between the two. See U.S. v. Pickerstein, No. 3:16-cr-00009 (VAB) (D. Conn. filed Jan. 14, 2016) (Dkt. ## 1, 6).[3]

Viola also fails to offer any evidence to substantiate his claim that Pickerstein’s thefts from other clients’ accounts had any bearing on his case. While it is possible, Viola offers no evidence to tie any particular act (or failure to act) by Pickerstein to his pilfering of client funds. Instead, he baselessly speculates that Pickerstein thought he “had a lot of money to pay a large fee for his defense” in light of “the amount of money involved in [Viola’s] case, ” and when he discovered the opposite was true, he ceased defending him. [Dkt. #1, Pet’r’s Mot. to Vacate at 39]. Viola offers no evidence to support this theory. In addition, his explanation of Pickerstein’s thinking does not make sense. There would have been no reason for Pickerstein to conclude that he was wealthy based on the amount of other people’s money with which he was entrusted. This is particularly so given Viola’s meager income, heavy gambling losses, and spotty employment record, which long predated Pickerstein’s involvement in the case. See U.S. v. Viola, No. 3:12-cr-00025 (D. Conn. filed Aug. 11, 2011) (Dkt. #57 at ¶¶ 74, 76-77, 80).

These facts also do not resemble those arising in Bracy v. Gramley, 520 U.S. 588, 904 (1997), as Viola incorrectly contends. See [Dkt. #32, Pet’r’s Am. Mot. at 1-2]. There, the defendant was convicted of murder and sentenced to death by a state court judge who was later convicted on federal charges of accepting bribes from criminal defendants in other cases in which they were charged with murder. The defendant sought to show that the acceptance of bribes in those cases induced a compensatory bias against defendants who did not bribe him to create the appearance that he wasn’t “soft” on criminal defendants. Bracy, 520 U.S. at 906. Relevant to the Supreme Court’s analysis were the facts that the defendant’s attorney was a former associate of and was appointed by the corrupt judge, the attorney announced that he was ready for trial just a few weeks after his appointment, the attorney did not request additional time to prepare penalty-phase evidence in a death penalty case, and at least one of the judge’s former law associates had participated in the bribery activity. Id. at 907-08. Here, unlike in Bracy, Defendant Viola fails to supply a plausible factual nexus between Attorney Pickerstein’s criminal conduct and the outcome of his case.[4]

Beyond his unsubstantiated conspiracy theory, Viola sets forth allegations suggesting that Pickerstein was ineffective following his and Attorney Woo’s CJA appointment by not aggressively pursuing discovery regarding investor losses, spending less time on his case, and failing to effectively communicate with him. See [Dkt. #1, Pet’r’s Mot. to Vacate at 39-40]. Additional discovery consisting of his attorneys’ communications is not likely to tip the balance in Viola’s favor as to these allegations. Indeed, on appeal, Viola “did not object to the district court’s loss calculation, the number of victims, or the investment enhancement at sentencing” and he even “submitted a list of victims and loss amounts not materially different from that submitted by the government.” U.S. v. Viola, 555 F. App’x 57, 59 (2d Cir. 2014). However, he now contends that “new evidence” generated by an accounting firm hired by the bankruptcy trustee in a different matter depicts that more investors made money than lost it, and that Viola, rather than making money, actually lost more than $2.8 million of his own money. [Dkt. #1, Pet’r’s Mot. to Vacate at 43, 46].[5]

As for Viola’s other attorneys, none of the allegations justify discovery, let alone the broad and general request for all communications regarding Viola’s case. First, Viola contends that Attorney Green “should have directed him to invoke his Fifth Amendment right against self-incrimination” when Viola met with the government, and he “assured [Viola] of a reasonable sentence.” [Dkt. #1, Pet’r’s Mot. to Vacate at 21, 35]. Viola does not explain how Attorney Green’s communications regarding his case have any bearing on these allegations, nor does he demonstrate that such discovery would support his petition. Similarly, Viola’s claims that Attorney Woo screamed at and disrespected him, ignored favorable evidence, and his general, unspecified claims of a conflict of interest, misrepresentations, and lapses in attention to detail do not implicate the communications Viola requests. [Id. at 40-42].[6] Finally, Viola’s general assertion that Green, Pickerstein, and Woo induced him into pleading guilty and cooperating with the Government by misleading him as to the sentence he was likely to receive is far too barebones to warrant discovery. Viola states only that at some point, someone misled him into believing that pleading guilty and cooperating would result in “a zero to two year sentence.” [Dkt. #1, Pet’r’s Mot. to ...


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