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United States v. Donahue

United States District Court, M.D. Pennsylvania

May 22, 2017

UNITED STATES OF AMERICA
v.
JOSEPH P. DONAHUE, Defendant

          MEMORANDUM

          JAMES M. MUNLEY JUDGE United States District Court.

         Before the court for disposition is Defendant Joseph P. Donahue's motion styled as a “Motion for Relief from Final Judgment Pursuant to Fed.R.Civ.P. 60(b)(3) and 60(d)(3)”. The parties have briefed their respective positions, and the matter is ripe for disposition.

         Background

         On January 6, 2010, the United States of America (hereinafter “government”) filed a sixteen-count Second Superceding Indictment against Defendant Joseph P. Donahue (hereinafter “defendant”).[1] The indictment contains charges of bank fraud, 18 U.S.C. § 1344; access device fraud (credit card fraud), 18 U.S.C. §§ 1029(a)(2), 1029(a)(2), 1029(b)(1) and 1029(b)(2); false statements to the government, 18 U.S.C. § 1001; and money laundering, 18 U.S.C. § 1956(a)(1)(A). Basically, the government charged that the defendant solicited people to join in business ventures with him and then used their personal information to obtain credit cards for his own personal use.

         After a ten-day trial that commenced on February 17, 2010, a jury found the defendant guilty on all counts. After the trial, the defendant filed a motion for judgment of acquittal that raised various issues. The court denied the motion on September 13, 2010. (Doc. 250). The court scheduled sentencing for September 15, 2010. (Doc. 243). On the eve of sentencing, however, the court granted leave for the defendant to file supplemental post-trial motions based upon newly discovered evidence. On October 1, 2010, defendant filed a second supplemental motion for judgment of acquittal and new trial, raising one more issue. The court held a hearing on the motions on October 4, 2010. The court issued a memorandum and order on October 22, 2010 denying the defendant's supplemental motion and second supplemental motion for new trial and judgment of acquittal. (Doc. 270).

         The defendant then appealed to the Third Circuit Court of Appeals. The Third Circuit affirmed the judgment of conviction on January 30, 2012. United States v. Donahue, 460 F. App'x 141 (3d Cir. 2012). The defendant then filed a petition for certiorari with the United States Supreme Court. The Court denied the petition on October 1, 2012. Donahue v. U.S., 133 S.Ct. 184 (2012).

         Next, on September 26, 2013, defendant filed a motion pursuant to 28 U.S.C. § 2255. (Doc. 314). He filed a supplement to the motion on January 14, 2014. (Doc. 322). Issues raised in the motion included: whether the government improperly failed to disclose exculpatory evidence regarding the actions of the FBI agent who led the criminal investigation of the defendant[2]; whether the government engaged in prosecutorial misconduct by, inter alia, failing to disclose properly the information regarding an FBI's agent's alleged perjury; whether trial counsel acted ineffectively by failing to pursue the perjury issue zealously enough; whether trial counsel was ineffective for failing to interview certain witnesses; and whether the court correctly sentenced defendant.

         After the parties fully briefed the issues, we denied the motion on June 23, 2014. (Doc. 337). Defendant then sought a certificate of appealability from the Third Circuit Court of Appeals so that he could appeal this court's decision. The Third Circuit Court of Appeals denied a certificate of appealability on August 26, 2014. (Doc. 346). The appeals court found that defendant “has not made a substantial showing of the denial of a constitutional right nor shown that reasonable jurists would find the correctness of the procedural aspects of the District Court's decision debatable.” Id.

         Defendant also filed a petition for a writ of mandamus with the Third Circuit Court of Appeals seeking to have this court's order on his section 2255 motion vacated and to disqualify the district court judge. The Third Circuit denied the petition. Defendant then filed another mandamus petition with the Third Circuit Court of Appeals raising the same issues as the first petition. The Third Circuit denied this petition on October 15, 2014. In re Donahue, 580 F. App'x 136 (3d Cir. 2014).

         Defendant has now filed yet another motion attacking our decision on the section 2255 motion. The motion is fashioned as a “Motion for Relief from Final Judgment Pursuant to Rule 60(b)(3) and 60(d)(3).” The matter has been fully briefed, bringing the case to its present posture.

         Discussion

         As noted above, the defendant has filed a document which he has labeled as a motion for relief from final judgment on his section 2255 motion.[3] The law provides that: “A § 2255 motion is the presumptive means by which a federal prisoner can challenge the validity of his conviction or sentence[.]” United States v. Hight, 304 F. App'x 31, 32 (3d Cir. 2008). Defendant, however, has filed a Rule 60 motion, instead of a second 2255 motion. Defendants sometimes utilize a Rule 60 motion to circumvent the requirements of filing a second section 2255 motion including the stringent gatekeeping requirements imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter “AEDPA”).[4]

         When someone in the defendant's position files a Rule 60 motion the court must first determine, using criteria set forth by the United States Supreme Court, whether the motion is a true Rule 60(b) motion or whether it is rather a second or successive habeas corpus petition. Ferguson v. United States, Civ. No. 11-0154, 2016 WL 1578777 *4 (W.D. Pa. Apr. 20, 2016). We lack jurisdiction over the motion if it is an unauthorized second or successive section 2255 motion. See 28 U.S.C. § 2255(h); Lugo v. Zickefoose, 427 F. App'x 89, 92 (3d Cir. 2011).

         The United States Supreme Court has explained the circumstances where a Rule 60(b) motion should be construed as a second or successive section 2255 motion in Gonzalez v. Crosby, 545 U.S. 524 (2005). Gonzalez holds that we must construe a Rule 60 motion as a habeas application if it raises a new claim, seeks to present newly discovered evidence in support of a previously ...


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