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United States of America v. Victor Rodriguez

January 17, 2012

UNITED STATES OF AMERICA
v.
VICTOR RODRIGUEZ



The opinion of the court was delivered by: Pollak, J.

MEMORANDUM/ORDER

Now pending before the court are Victor Rodriguez's pro se Motion for Production of Grand Jury Ministerial Record Pursuant to Federal Rule of Criminal Procedure 6(e), filed September 23, 2011 (Docket No. 1125), and pro se Motion Seek[ing] Relief from Judgment Based on Fraud on the Court Under Hazel-Atlas, filed October 28, 2011 (Docket No. 1128). The two motions raise common issues and will be disposed of concurrently. For the reasons that follow, I will dismiss both pro se motions and will transfer them to the Court of Appeals for the Third Circuit as applications to file second or successive motions pursuant to 28 U.S.C. § 2255.

I. History

Rodriguez pled guilty in this court on December 19, 2002, to numerous crimes, including murder in aid of racketeering activity, 18 U.S.C. § 1959(a)(1), and murder for hire, id. § 1958. He was sentenced to a term of life imprisonment without parole on January 21, 2004. He did not file a direct appeal.

On December 17, 2004, Rodriguez filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (Docket No. 964). He filed an amended pro se § 2255 motion on August 11, 2006, eventually supported by a counseled memorandum of law (Docket Nos. 1002, 1021). Rodriguez's motion was referred to the Honorable Peter B. Scuderi, U.S. Magistrate Judge, who recommended on March 26, 2008, that the motion be denied (Docket No. 1042). Judge Scuderi found that Rodriguez, in his plea agreement with the United States, had waived his right to attack his sentence collaterally under § 2255 and that this waiver had been made knowingly and voluntarily, with the aid of constitutionally effective counsel. I approved and adopted the report and recommendation of Judge Scuderi and denied Rodriguez's § 2255 motion by Memorandum/Order dated June 22, 2008 (Docket No. 1051). The Court of Appeals for the Third Circuit denied Rodriguez's request for a certificate of appealability on October 15, 2009 (Docket No. 1064).

Following this unsuccessful § 2255 motion, Rodriguez filed a pro se Motion for Production of Grand Jury Ministerial Record on March 24, 2011 (Docket No. 1095), alleging that newly discovered evidence indicated that he was not properly indicted by a grand jury. I ordered the government to respond to what was in effect a Rule 6(e) motion (Docket No. 1096). The government filed a response on May 13, 2011 (Docket No. 1104). The government's primary contention in response to Rodriguez's motion was that, by his plea agreement, he had waived his right to challenge his conviction and sentence. In the alternative, the government argued that there were no defects in the grand jury process and, even had there been any irregularity, Rodriguez had waived any objection he might otherwise have had by failing to seek pre-trial dismissal of the indictment. The government also pointed out that Rodriguez did not disclose the "new evidence" on which his motion was allegedly based. After the government filed its response, Rodriguez moved to withdraw his motion (Docket No. 1106). I permitted him to do so without prejudice on May 23, 2011 (Docket No. 1108).

On June 30, 2011, Rodriguez filed a pro se motion contending that the judgment of the district court was void based upon various alleged defects in the superseding indictments in his case (Docket No. 1111). The motion was styled as brought pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. In a Memorandum/Order issued on July 6, 2011 (Docket No. 1113), I construed Rodriguez's putative Rule 60(b) motion as a second or successive motion under 28 U.S.C. § 2255-a motion that I lacked jurisdiction to consider. 28 U.S.C. §§ 2244(a), 2255(h). I dismissed the motion and transferred it to the Third Circuit, which subsequently denied Rodriguez's application to file a second or successive § 2255 motion (Docket No. 1124).

II. Pending Motions

Rodriguez's Motion for Production of Grand Jury Ministerial Record Pursuant to Federal Rule of Criminal Procedure 6(e) is, in substance, a renewed version of the motion that Rodriguez withdrew without prejudice on May 23, 2011. The current motion alleges that newly discovered evidence indicates that Rodriguez was not properly indicted by a grand jury. The "new evidence" is a letter dated October 1, 2010, addressed to Rodriguez from a deputy clerk of this court. The letter, which Rodriguez has attached to his motion, states:

This letter is in response to your request to obtain information regarding the above-mentioned case [98-362]. The original complaint was filed on July 9, 1998. The original indictment was filed on August 5, 1998. There were three superseding indictments. One was filed on July 28, 1999, one was filed on October 20, 1999, and the third was filed on January 11, 2001.

The deputy clerk's recital is incomplete: there were seven superseding indictments in this case.*fn1 Based on the deputy clerk's reference to three superseding indictments, Rodriguez alleges that the government prepared the other four superseding indictments in private, without the grand jurors. He requests disclosure of grand jury materials and an evidentiary hearing to inquire into this alleged fraud on the court.

Rodriguez advances a similar argument in his second pending motion, titled Motion Seek[ing] Relief from Judgment Based on Fraud on the Court Under Hazel-Atlas.

The motion asserts that the deputy clerk's letter (quoted above) demonstrates that the United States committed a fraud on the court by fabricating several of the superseding indictments. Rodriguez argues that this court has inherent jurisdiction to remedy such a fraud under Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-45 (1944). He ...


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