United States District Court, D. Connecticut
RULING AND ORDER
N. CHATIGNY UNITED STATES DISTRICT JUDGE
Lauria has moved under Federal Rule of Civil Procedure 60(b)
to reopen this habeas case, which seeks relief from a 35-year
sentence imposed by Judge Dorsey in 1998. The government
opposes the motion on the grounds that it constitutes a
second or successive motion for which authorization has not
been obtained from the Court of Appeals, as required by 28
U.S.C. § 2255(h), and fails to satisfy the requirements
for obtaining relief under Rule 60(b). For reasons set forth
below, the motion is denied and no certificate of
appealability will be issued.
a lengthy jury trial before Judge Dorsey in 1997, Lauria was
convicted of conspiracy to possess cocaine with intent to
distribute, 21 U.S.C. § 846, as charged in count one of
the indictment; conspiracy to retaliate against a witness, 18
U.S.C. §§ 371, 1512(b), as charged in count two;
and retaliation against a witness, 18 U.S.C. §
1513(b)(2), as charged in counts three and four. As was
customary at the time, there were no allegations in the
indictment or findings by the jury regarding the quantities
of drugs involved in the conspiracy. Rather, drug quantity
was treated as a sentencing factor to be determined by the
judge. As the judge entrusted with this responsibility in
Lauria's case, Judge Dorsey found that the conspiracy
involved 610.5 grams of cocaine base and 56.25 kilograms of
powder cocaine. Under the then-current version of the
Sentencing Guidelines, these quantities resulted in a base
offense level of 36. After a 4-level increase for
Lauria's role in the drug conspiracy and a 2-level
increase for his obstruction of justice, the total offense
level was 42. Because Lauria had previously been convicted of
state and federal drug felonies, he was found to be a career
offender, which increased his criminal history category from
V to VI. The resulting guideline range was 30 years to life.
The government argued that under the enhanced penalty
provisions of 21 U.S.C. § 841(b)(1)(A), Lauria's
conviction on count one exposed him to a mandatory minimum
sentence of 20 years and a maximum possible sentence of as
much as life, the enhanced penalties applicable to a repeat
drug offender in a case involving 5 kilograms or more of
cocaine powder and 50 grams or more of cocaine base. Without
an enhancement for drug quantity, the maximum sentence that
could be imposed on count one was 30 years. Lauria was
sentenced to 35 years on count one with shorter terms on the
other counts, all to run concurrently. The Second Circuit
affirmed the judgment. See United States v. Lauria,
199 F.3d 1324 (2d Cir. 1999) (unpublished) [ECF No. 290].
October 2001, Lauria filed a § 2255 petition seeking to
vacate his convictions and sentence on numerous grounds. As
construed by Judge Dorsey, the petition included a claim that
the sentence on count one violated 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.” Judge Dorsey understood
Lauria to be arguing that enhancing his sentence in the
absence of a jury finding of the requisite drug quantity
constituted plain error that should be corrected by
resentencing him on count one to a term of imprisonment not
exceeding 30 years. The government argued that Lauria was not
entitled to resentencing, relying principally on United
States v. Cotton, 535 U.S. 625, 633 (2002), which held
that a violation of Apprendi does not constitute
reversible plain error when the evidence of the drug quantity
used to enhance the defendant's sentence was
“overwhelming” and “essentially
uncontroverted.” The government also argued that even
if the sentence on count one should not have exceeded 30
years, any error was harmless because the sentences on all
the counts could be stacked pursuant to U.S.S.G. §
5G1.2(d) to achieve the same sentence of 35 years.
December 13, 2006, Lauria's petition was granted in part
and denied in part (“the 2006 Ruling”). See
Lauria v. United States, 3:96-CR-185/3:01-CV-1894(PCD),
2006 WL 3704282 (D. Conn. Dec. 13, 2006) [ECF No. 411]. Judge
Dorsey ruled that, in the absence of a jury finding regarding
drug quantity, the sentence of 35 years on count one
constituted plain error requiring resentencing.
Lauria, 2006 WL 3704282, at *20. Judge Dorsey stated
that the government's reliance on Cotton was
unavailing for two reasons: it was up to the Court of
Appeals, not the District Court, to determine whether the
Apprendi error should be noticed; and the Second
Circuit had granted relief to correct a similar error in
United States v. Thomas, 274 F.3d 655 (2d Cir.
2001). Judge Dorsey concluded that Lauria was entitled to be
resentenced on count one to not more than 30 years. Judge
Dorsey did not mention the government's argument about
appealed and filed a motion for reconsideration arguing that
his convictions should be vacated. The government moved for
reconsideration of the decision granting resentencing. In its
motion, the government argued that the Court had erred in
failing to follow Cotton because the evidence of
drug quantity was overwhelming and essentially
uncontroverted. The government also argued that the Court had
erred in failing to consider that any error in the sentence
on count one was harmless in view of the availability of
stacking. Lauria did not respond to the government's
April 2007, the government's motion for reconsideration
was granted and Lauria's motion was denied (“the
2007 Ruling”). Lauria v. United States,
3:96-CR-185/3:01-CV-1894(PCD), 2007 WL 1064319 (D. Conn. Apr.
5, 2007) [ECF No. 423]. In granting the government's
motion, Judge Dorsey agreed that Cotton applied
because “the evidence of drug quantity adduced at trial
was ‘overwhelming' and
‘uncontroverted.'” Id. at *6. Judge
Dorsey also agreed with the government that any error was
harmless because the sentences on all the counts could be
stacked to achieve a sentence of 35 years, the sentence he
had found to be “appropriate” for Lauria.
Id. Judge Dorsey granted Lauria's request for a
certificate of appealability, which did not limit the
potential claims on appeal. Id. at *7.
Second Circuit affirmed the 2006 Ruling “except to the
extent that it was rendered moot” by the 2007 Ruling.
Pappas v. United States, 362 Fed.Appx. 175, 177 (2d
Cir. 2010). The Second Circuit did not address any challenge
by Lauria to the 2007 Ruling because he had failed to file a
notice of appeal from that ruling. Id. at 176-77.
January 2013, Lauria moved for reconsideration of the 2006
Ruling based on an alleged error related to the closing of
the courtroom to the public during jury selection. Judge
Martinez recommended that the motion be denied and her
recommendation was adopted. Lauria appealed. In November
2014, the Second Circuit dismissed the appeal, noting that
“[t]he motions before the district court were, in
effect, second or successive 28 U.S.C. § 2255 motions
filed without the required authorization.” ECF No. 533
(citing 28 U.S.C. § 2255(h); Gonzalez v.
Crosby, 545 U.S. 524, 531 (2005)).
subsequently moved for relief from the 2007 Ruling under
Federal Rule of Civil Procedure 60(b), arguing that he did
not have an adequate opportunity to oppose the
government's motion for reconsideration. The motion was
denied and Lauria appealed requesting leave to file a
successive § 2255 petition. In September 2016, the
Second Circuit denied the motion because Lauria had not
satisfied the criteria set forth in 28 U.S.C. § 2255(h).
ECF No. 572.
November 2016, Lauria moved to reduce his sentence under 18
U.S.C. § 3582(c)(2) pursuant to an amendment to the
Sentencing Guidelines. The Probation Office and the
government each responded that because the amendment did not
lower Lauria's guideline range, he was not eligible for a
reduction. Both the Probation Office and the government cited
Judge Dorsey's finding that the conspiracy charged in
count one involved 56.25 kilograms of powder cocaine.
Lauria's motion was denied and he appealed. In October
2017, the Second Circuit dismissed the appeal as
“lack[ing] an arguable basis either in law or in
fact.” ECF No. 615 at 1 (citations omitted).
now moves again for relief from the 2007 Ruling under Rule
60(b)(4) and (6).
II.Standard of ...