United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY, UNITED STATES DISTRICT JUDGE.
Markos Pappas moves for reconsideration of the order of July
7, 2017 [ECF No. 606], which denied his Rule 60(b) motion for
relief from the order of December 13, 2006 [ECF 411] denying
his motion to vacate or correct his sentence under 28 U.S.C.
§ 2255. Alternatively, he moves for a certificate
of appealability pursuant to 28 U.S.C. § 2253(c)(2). For
reasons that follow, the motions are denied.
1997, following a jury trial, Pappas was convicted of
conspiracy to possess with intent to distribute cocaine, 21
U.S.C. § 846, as charged in count one of the indictment;
conspiracy to retaliate against a witness, 18 U.S.C. §
371, as charged in count two; and retaliation against a
witness, 18 U.S.C. § 1513(b)(2), as charged in count
three. At sentencing, Judge Dorsey found by a preponderance
of the evidence that the drug conspiracy involved more than
500 grams of cocaine, raising the maximum allowable sentence
on count one from 20 to 40 years. See 21 U.S.C.
§ 841(b)(1)(B). Pappas was sentenced to concurrent terms
of imprisonment of 30 years on count one, 5 years on count
two, and 10 years on count three. The judgment was affirmed
on direct appeal. See United States v. Lauria, 199
F.3d 1324 (2d Cir. 1999) (unpublished).
moved to vacate or correct his sentence under 28 U.S.C.
§ 2255. In relevant part, his motion was based on
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000),
which held that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable
doubt.” On December 13, 2006, Judge Dorsey denied
the motion. See Lauria v. United States,
3:96-CR-185/3:01-CV-1893(PCD), 2006 WL 3704282 (D. Conn.,
Dec. 13, 2006) [ECF No. 411]. Judge Dorsey ruled that
Pappas's sentence did not violate Apprendi,
notwithstanding the lack of a jury determination of drug
quantity, because the government had filed a prior offender
notice under 21 U.S.C. § 851, which provided another
independent basis for increasing the statutory maximum
sentence. See Lauria, 2006 WL 3704282, at *21. The
§ 851 notice had been stricken prior to trial under
United States v. Collado, 106 F.3d 1097 (2d Cir.
1997), but that case had been overturned in the interim,
see United States v. Ortiz, 143 F.3d 728 (2d Cir.
1998). Judge Dorsey reasoned that “even if the original
sentence were vacated, the original 851 notice would pertain,
or the government would be able to re-file the notice.”
Lauria, 2006 WL 3704282, at *21 n.15.
moved for reconsideration on the ground that the Court's
reasoning regarding the § 851 notice was incorrect.
See Pappas's Feb. 15, 2007, Supp. Brief, at
33-38 [ECF No. 424]. Judge Dorsey denied the motion stating
that Pappas merely “raise[d] arguments that ha[d]
already been rejected and criticize[d] the Court for failing
to address certain arguments.” See Lauria v. United
States, 3:96-CR-185/3:01-CV-1893(PCD), 2007 WL 1064319,
at *6 (D. Conn., Apr. 5, 2007) [ECF No. 423]. In a filing
submitted prior to the December 13, 2006 order, in response
to an argument by the government regarding the § 851
notice, see Gov't Aug. 30, 2004, Response, at 30
[ECF No. 384], Pappas had argued that it would be improper to
assume the government could or would have re-filed the §
851 notice. See Pappas's Nov. 30, 2004, Supp.
Brief, at 45-46 [ECF No. 400]. In addition, he had argued
that the government's reasoning, ultimately adopted by
the Court, failed to consider that he could have challenged
his prior offender status under 21 U.S.C. § 851(c),
which provides a right to a hearing if a defendant
“denies any allegation of the information of prior
conviction” or “claims that any conviction
alleged is invalid.”
Dorsey issued a certificate of appealability that did not
limit Pappas's potential claims on appeal. Id.
at *7. On appeal, the Second Circuit affirmed Judge
Dorsey's order “substantially for the reasons
stated in the . . . thorough and careful ruling” of
December 13, 2006. Pappas v. United States, 362
Fed.Appx. 175, 177 (2d Cir. 2010). In his briefing before the
Second Circuit, Pappas had again challenged Judge
Dorsey's reasoning regarding the stricken § 851
notice. See Pappas's Brief, at 158-62,
Pappas v. United States, No. 07-481, 362 Fed.Appx.
175 (2d Cir. 2010). His brief argued that had the § 851
notice been re-filed, he would have been “entitled to
all of the procedural and constitutional safeguards built in
to § 851.” Id. at 161.
7, 2017, this Court denied Pappas's Rule 60(b) motion
seeking relief from the December 13, 2006 order. See
ECF No. 606. In his Rule 60(b) motion, Pappas had argued that
his right to due process was violated when Judge Dorsey
invoked the § 851 notice as a basis for the enhanced
sentence without first giving him an opportunity to be heard
on whether the government could rely on the notice.
See ECF No. 557, at 2-10. I ruled that Pappas's
due process claim was foreclosed by the Second Circuit's
affirmance of the December 13, 2006 order. Pappas then filed
the present motion for reconsideration.
standard for granting a motion for reconsideration is
“strict.” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). “[R]econsideration
will generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked -
matters, in other words, that might reasonably be expected to
alter the conclusion reached by the court.”
Id. “The major grounds justifying
reconsideration are an intervening change of controlling law,
the availability of new evidence, or the need to correct a
clear error or prevent manifest injustice.” Virgin
Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992) (quotations omitted).
“[A] motion to reconsider should not be granted where
the moving party seeks solely to relitigate an issue already
decided.” Shrader, 70 F.3d at 257. Such a
motion “cannot be employed as a vehicle for asserting
new arguments or for introducing new evidence that could have
been adduced during the pendency of the underlying
motion.” Palmer v. Sena, 474 F.Supp.2d 353,
355 (D. Conn. 2007).
argues that the Second Circuit's affirmance of Judge
Dorsey's order does not foreclose his due process claim.
But the certificate of appealability issued by Judge Dorsey
did not prohibit Pappas from making any arguments, and Pappas
did in fact argue before the Second Circuit that Judge
Dorsey's treatment of the § 851 notice was improper.
Though Pappas did not cite the due process clause, he made
essentially the same argument he makes here: that had the
government re-filed a § 851 notice, he would have been
entitled to challenge his prior offender status at a hearing.
In his Second Circuit brief, he based his claim on the
“procedural and constitutional safeguards built in to
§ 851"; now he specifically refers to the due
process clause. In ruling against Pappas's claim based on
“procedural and constitutional safeguards, ” the
Second Circuit implicitly rejected the due process argument.
Pappas's due process claim as currently formulated was
not presented to the Second Circuit, the claim has been
waived. “[W]here an issue was ripe for review at the
time of an initial appeal but was nonetheless foregone, it is
considered waived and the law of the case doctrine bars the
district court on remand and an appellate court in a
subsequent appeal from reopening such issues unless the
mandate can reasonably be understood as permitting it to do
so.” United States v. Quintieri, 306 F.3d
1217, 1229 (2d Cir. 2002) (quotations omitted). The mandate
cannot reasonably be understood to permit this Court to
reconsider the propriety of Judge Dorsey's reliance on
§ 851. See Pappas, 362 Fed.Appx. at 177
(“We have considered all of petitioners' arguments
and find them to be without merit.”).