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Giordano v. United States

United States District Court, D. Connecticut

July 31, 2017



          Stefan R. Underhill United States District Judge.

         The petitioner, Philip Giordano, moves for relief from the final judgment of this court denying Giordano's 28 U.S.C. § 2255 petition and denying a Certificate of Appealablity. Giordano asserts that I denied the petition on account of my erroneous conclusion that his claims of improper jury instructions were procedurally defaulted. He argues that, under Rule 60(b) of the Federal Rules of Civil Procedure, I should grant him relief from judgment and should reconsider his claims regarding improper jury instructions. For the reasons discussed below, the motion (doc. # 236) is denied.

         I. Background

         I assume the parties' familiarity with the facts and restate only those relevant to the instant motion. Giordano is a former mayor of Waterbury, Connecticut. On September 12, 2001, a federal grand jury returned a fourteen-count indictment against Giordano and co-defendant Guitana Jones. The indictment pertained to an allegation that Giordano had sexually abused two minors while he was mayor. The indictment charged Giordano with two counts of violating an individual's civil rights under color of law, in violation of 18 U.S.C. § 242; one count of conspiring with Jones to transmit knowingly the names of the minor victims by using facilities and means of interstate commerce with intent to entice, encourage, offer and solicit criminal sexual activity, in violation of 18 U.S.C. §§ 371 and 2425; and eleven counts of substantive violations of 18 U.S.C. § 2425, each alleging a particular transmission via telephone of the name of a victim with intent to entice, encourage, offer and solicit illegal sexual activity. Jones pleaded guilty to several counts of the indictment on September 10, 2002, and entered into a written cooperation agreement. On January 16, 2003, the grand jury returned a superseding indictment against Giordano adding four additional counts of substantive violations of section 2425.

         United States District Judge Alan H. Nevas presided over Giordano's federal jury trial from March 12 to March 24, 2003. During trial, Jones testified that Giordano repeatedly and consistently warned her not to tell anyone about the abuse and to make sure the girls did not say anything either. Giordano threatened that Jones would go to jail if anyone found out. Jones testified that Giordano also repeatedly and consistently told the victims that they needed to remain silent, or else they would “get in trouble” and Jones would go to jail. Jones testified that she was afraid of going to jail, so she kept quiet and made sure the victims did as well.

         The minor victims' testimony substantially corroborated Jones's concerning the nature of the acts they performed, the places they performed the acts, and the warnings they received from Jones and Giordano. The victims both testified that they did not tell anyone about the abuse because they feared Giordano. One of the victims, who was twelve at the time of the trial, testified that she was afraid “[b]ecause I didn't know what a mayor was and I was afraid, because he had money and I was afraid he could have someone hurt my family and I was afraid he own everybody.” She “thought the Mayor could rule people, like be their boss” and believed, based on Jones's and Giordano's warnings and threats, that Giordano “would have someone hurt my family or that either I would get in trouble” if she revealed the abuse.

         The other victim, who was ten at the time of the trial, testified that she understood that the mayor's job was to “[p]rotect the city” and “[w]atch[ ] over us, like God.” She could not remember whether Giordano told her not to tell anyone about the abuse but testified that she too did not tell anyone about the abuse because she feared Giordano and “thought he had power.” She testified that she believed she “would get put in jail” if she told anyone and also thought her mother, Jones, would beat her.

         At the close of the case, the court delivered its instructions to the jury. Relevant to the instant motion, the court instructed the jury regarding the necessary elements to prove a defendant guilty of depriving someone of their civil rights while acting under color of law, in violation of 18 U.S.C. § 242. The relevant portion of the instruction on the “color of law” element reads as follows:

The first element which the government must establish beyond a reasonable doubt is that he acted under color of laws of the State of Connecticut. This means simply that he acted in his official capacity, or else claimed to do so, even if he misused or abused his power by violating the law himself. Color of law means under pretense of law. In other words, the term color of law also includes actions which are not authorized by law, so long as they are performed by utilizing the defendant's legal authority.
So if a public official misuses the power given to him by the law to deprive a named victim or her rights, his misconduct is taken under color of law, even if the law forbids what has been done . . . . Misconduct made possible because the public official is clothed with the authority of the law is action under color of law . . . .

3/24/2003 Trial Tr. at 2102-04. Giordano's trial counsel did not object to the instruction given.

         The jury convicted Giordano on all counts of the indictment except one of the section 2425 charges. Acting through his trial counsel, Giordano appealed his conviction and sentence. Though Giordano's trial counsel raised multiple arguments on appeal, he did not claim error in the jury instruction regarding section 242's “color of law” element. The Second Circuit affirmed by published decision and unpublished order. See United States v. Giordano, 442 F.3d 30 (2d Cir. 2006); United States v. Giordano, 172 F. App'x 340 (2d Cir. 2006). The Court held, in relevant part, that there was sufficient evidence that Giordano acted under “color of law” as required by 18 U.S.C. § 242. On January 11, 2010, following a remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), and subsequent appeal to the Second Circuit, the Supreme Court denied certiorari. Giordano v. United States, 558 U.S. 1138 (2010). On December 2, 2015, I denied Giordano's section 2255 petition and denied his request for a Certificate of Appealability. On June 21, 2016, the Second Circuit dismissed Giordano's notice of appeal of my ruling and denied his motion for a Certificate of Appealability, concurring with my conclusion that he had “not made a ‘substantial showing of the denial of a constitutional right.'” Mandate of USCA, dated 9/7/2016 (doc. # 235). Giordano appealed that ruling to the Supreme Court, which denied his petition for certiorari on January 9, 2017.[1]

         II. Standard of Review

         Rule 60(b) permits a party to seek relief from a final judgment under a “limited set of circumstances[.]” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Absent a claim that relief from judgment is warranted under a particular circumstance provided by the Rule, the petitioner must rely on the “catch-all” provision found in Rule 60(b)(6). See Id. at 529. Rule 60(b)(6) ‚Äúpermits reopening when the movant shows any reason justifying relief from the operation of the judgment other than the more specific circumstances set out in Rules ...

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