United States District Court, D. Connecticut
RULING ON MOTION FOR RELIEF PURSUANT TO RULE
R. Underhill United States District Judge.
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
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.
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.
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
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.
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.
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.
Standard of Review
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)
“permits 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