United States District Court, W.D. Pennsylvania
ANTHONY L. VIOLA, Petitioner,
WARDEN ZUNIGA, Respondent.
Barry Fischer Judge.
MAGISTRATE JUDGE'S REPORT AND
PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.
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.
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)). 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)).
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)).
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)).
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;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). See also 28 U.S.C. §
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).
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