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Viola v. Zuniga

United States District Court, W.D. Pennsylvania

March 9, 2018

ANTHONY L. VIOLA, Petitioner,
v.
WARDEN ZUNIGA, Respondent.

          Nora Barry Fischer Judge.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         Before the Court is a petition for a writ of habeas corpus filed by federal prisoner Anthony Viola pursuant to 28 U.S.C. § 2241. It is respectfully recommended that the petition be dismissed with prejudice.

         II. REPORT

         A. Background

         Viola was convicted in 2011 in the United States District Court for the Northern District of Ohio of two counts of conspiracy to commit wire fraud and thirty-three counts of wire fraud, in violation of 18 U.S.C. §§ 371 and 1343. On January 5, 2012, that court sentenced Viola to sixty months' incarceration for each of the conspiracy counts and 150 months' incarceration for each of the wire fraud counts, with all terms to run concurrently, and as part of his sentence he was ordered to pay restitution. (Judgment, ECF No. 363, United States v. Viola, No. 1:08-cr-506 (N.D. Oh. Jan. 5, 2012)).[1] On May 30, 2013, the government filed its notice of finalization of restitution as to each defendant, including Viola. (Notice, ECF No. 427, Viola, No. 1:08-cr-506 (N.D. Oh. May 30, 2013)). The court issued its final restitution order on July 11, 2013, and ordered that Viola's total restitution was $2, 649, 865. (Order, ECF No. 428, Viola, No. 1:08-cr-506 (N.D. Oh. July 11, 2013)).

         In the meantime, Viola was tried in the Cuyahoga County Court of Common Pleas on state charges of mortgage fraud, and on April 26, 2012, he was acquitted of those charges. The following year in Viola's federal criminal case, the Sixth Circuit Court of Appeals affirmed the district court's order denying a motion for a new trial. (Order, United States v. Viola, No. 12-3112 (6th Cir. Nov. 6, 2013)). It denied his petition for rehearing en banc on March 10, 2014. (Order, Viola, No. 12-3112 (6th Cir. Mar. 10, 2014)).

         Viola subsequently filed in the District Court for the Northern District of Ohio a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On November 17, 2015, that court denied Viola's motion and denied a certificate of appealability. (Mem. Op. and Order, ECF No. 506, Viola, No. 1:08-cr-506 (N.D. Oh. Nov. 17, 2015)). On November 23, 2016, the Sixth Circuit Court of Appeals issued an order in which it denied Viola's subsequent request for a certificate of appealability. (Order, Viola v. United States, No. 16-3023 (6th Cir. Nov. 23, 2016)). The court of appeals denied Viola's subsequent motions for rehearing en banc. (Orders, Viola, No. 16-3023 (6th Cir. Apr. 26, 2017, and May 11, 2017)). On October 2, 2017, the Supreme Court of the United States denied Viola's petition for a writ of certiorari, and on November 28, 2017, it denied his petition for rehearing. (Orders, Viola v. United States, S.Ct. Docket No. 16-9452 (Oct. 2, 2017, and Nov. 27, 2017)).

         The 1996 amendments that the Antiterrorism and Effective Death Penalty Act ("AEDPA") made to § 2255 bar a federal prisoner from filing a second or successive § 2255 motion unless the appropriate court of appeals first certifies the filing contains a claim based on:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h). See also 28 U.S.C. § 2244(a).

         It does not appear that Viola has filed with the Sixth Circuit Court of Appeals an application for authorization to file a second or successive § 2255 motion. Unless he receives authorization from it, he cannot litigate another motion to vacate his sentence in the District Court for the Northern District of Ohio. Nevertheless, Viola has continued to file motions with that court in his criminal case. On September 1, 2017, that court issued a memorandum opinion and order in which it advised him that "[t]he case has long been terminated and no future filings will be accepted under this case number unless the Sixth Circuit authorizes a second or successive petition under 28 U.S.C. § 2255(h)." (Mem. Op. and Order at 2, ECF No. 541, Viola, No. 1:08-cr-506 (N.D. Oh. Sept. 1, 2017)). It also explained that "[t]he majority of the issues" Viola raised in his various motions "have been raised and addressed in a myriad of other motions and hearings and have been resolve against Mr. Viola in multiple decisions from this Court and the Sixth Circuit Court of Appeals. They are all aimed at re-visiting this Court's denial of Mr. Viola's original request for a new trial and/or his request for relief under § 2255. As such, they are barred by the law-of-the-case doctrine." (Id. at 2-3). In that same memorandum opinion and order, the court also denied Viola's most recent motion to reduce restitution, which he filed on August 14, 2017. (Id. at 4-5). It determined that "Viola has established a pattern of filing motions in this case that are repetitive and baseless[, ]" and it "permanently enjoined [him] from filing any further motions or other documents pertaining to his conviction and sentence in this criminal action unless and until he has received permission from the Sixth Circuit to file a second or successive petition under 28 U.S.C. § 2255." (Id. at 6).

         Viola is incarcerated at FCI McKean, which is located within the territorial boundaries of the Western District of Pennsylvania. In August 2017, he filed with this Court the instant petition for a writ of habeas corpus pursuant to 28 ...


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