United States v. Romano

UNITED STATES OF AMERICA, v. JOSEPH ROMANO, Defendant.

Nos. 12 Cr. 691 (JFK), 16 Civ. 5689 (JFK)

United States District Court, E.D. New York

August 22, 2022

FOR DEFENDANT JOSEPH ROMANO Pro Se

FOR RESPONDENT UNITED STATES OF AMERICA Joshua G. Hafetz U.S Attorney's Office for the Eastern District of New York

OPINION & ORDER

JOHN F. KEENAN, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant-Petitioner Joseph Romano's ("Romano") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255(a). The Government opposes the motion. For the reasons set forth below, Romano's motion is DENIED.

I. Background

On November 7, 2012, Romano was charged by indictment with two counts of conspiring to murder an employee of the United States, in violation of 18 U.S.C. § 1117. (Indictment ECF No. 11.^[1]) The charges stemmed from Romano's role in a stunning scheme to murder then United States District Judge, now United States Circuit Judge for the Second Circuit, Joseph Bianco (“the Judge”), and Assistant United States Attorney Laura Gatz (“AUSA”). The evidence presented at trial established that between February 1, 2012, and October 9, 2012, Romano conspired with his friend, Dejvid Mirkovic (“Mirkovic”), to hire a “hitman” to kill the Judge and AUSA in retaliation for their roles in convicting and sentencing him to a 180-month term of incarceration for wire fraud and bank fraud. (Presentence Investigation Report (“PSR”) ¶¶ 1, 6.)

The conspiracy began when Romano, who was serving his 180-month sentence at the time, informed a fellow inmate that he wanted to murder the Judge and AUSA and mutilate their bodies by having them beheaded. Based on information provided by the inmate, law enforcement set up a sting operation involving undercover law enforcement officers posing as prospective contract killers. (Id. ¶ 7.) At Romano's direction, Mirkovic traveled from Florida to New York on three separate occasions to meet with two individuals whom he and Romano believed would carry out the killings. (Id. ¶¶ 9, 10, 15.) Unbeknownst to Mirkovic and Romano, both of the potential hitmen were undercover officers participating in the sting. (Id. ¶¶ 6, 8-9.)

In order to test the undercover officers' bona fides as hitmen, Romano directed Mirkovic to first pay the officers to assault a car mechanic with whom he had a financial dispute. (Id. ¶ 7.) The undercover officers, after staging the assault with the help of the unharmed mechanic, notified Mirkovic on September 22, 2012, that the assault had been carried out. (Id. ¶ 11.) On September 25, 2012, Romano directed Mirkovic to arrange for the murders. (Id. ¶ 12.) Shortly thereafter, Mirkovic offered to pay the undercover officers $40,000 to murder the Judge and AUSA on Romano's behalf. (Id.) Mirkovic also relayed Romano's instructions for how the murders should be carried out. (Id.) Specifically, Romano requested that the heads of the Judge and AUSA be preserved in formaldehyde as “souvenirs.” (Id.)

Between September 22, 2012, and October 2, 2012, Mirkovic delivered a total of $22,000 in cash down payments to the undercover officers. (Id. ¶¶ 13-16.) On October 9, 2012, Romano and Mirkovic were arrested. (Id. ¶ 18.) Following a two-week trial, Romano was found guilty by a jury of conspiring to murder the Judge and AUSA. (Verdict Form, ECF No. 155.)

On April 14, 2014, the Court sentenced Romano to two concurrent terms of life imprisonment, one term for each count, to run consecutively with his sentence on his underlying fraud conviction. (Judgment, ECF No. 171 at 2.) Shortly thereafter, Romano appealed his conviction and sentence to the Second Circuit, arguing that the Court improperly denied his pre-trial motion to suppress incriminating statements that he made after his arrest. Specifically, Romano argued that the Court erred in rejecting his claim that the arresting officers violated his Miranda rights by tricking him into believing he was entering into a cooperation agreement with the Government. (Summary Order, ECF No. 188.) The Second Circuit rejected Romano's claim and affirmed his judgment of conviction in its entirety on November 17, 2015. (Id.)

On October 7, 2016, Romano filed his first pro se motion to vacate his conviction pursuant to 28 U.S.C. § 2255 (“First Motion”). (ECF No. 210.) In the First Motion, Romano argued that his trial counsel and appellate counsel were constitutionally ineffective because neither attorney challenged the validity of his indictment. (Id. at 1-2.) Specifically, Romano argued that the indictment in his case violated the Double Jeopardy Clause of the Fifth Amendment because it charged two separate conspiracy counts instead of one, resulting in multiplicitous counts. (Id. at 2-3.) In an Opinion and Order dated August 20, 2018, the Court denied Romano's First Motion, concluding that he had failed to establish that the indictment contained multiplicitous counts and, in the alternative, he had failed to demonstrate that he was prejudiced by his attorneys' alleged errors. (ECF No. 231.) The Court additionally declined to issue a certificate of appealability. (Id.) On August 27, 2018, Romano filed a motion for reconsideration, (ECF No. 232.), which the Court promptly denied, (ECF No. 233). On September 17, 2018, Romano filed a notice of appeal and moved for a certificate of appealability in the Second Circuit. (ECF No. 234.)

On January 4, 2019, before the Second Circuit had ruled on Romano's motion, Romano filed a second motion under § 2255 (“Second Motion”) in this Court. (ECF No. 247.) On April 12, 2019, Romano filed a motion in the Second Circuit requesting leave to file a successive or second motion pursuant to § 2255. (ECF No. 255.) On May 8, 2019, the Second Circuit denied Romano's motion for leave as unnecessary, explaining that his Second Motion was not “successive” because his motion for a certificate of appealability was still pending when the Second Motion was filed. See Romano v. United States, No. 19-956 (2d Cir. May 8, 2019). Citing Whab v. United States, 408 F.3d 116, 120 (2d Cir. 2005), the Circuit transferred the Second Motion to this Court and directed the Court to construe the Second Motion as an application to amend the First Motion. Romano, No. 19956; see also Ching v. United States, 298 F.3d 174, 177 (2d Cir. 2002) (“When a § 2255 motion is filed before adjudication of an initial § 2255 motion is complete, the district court should construe the second § 2255 motion as a motion to amend the pending § 2255 motion.”). Since the Second Circuit's order, Romano has filed seven “supplemental” filings (“Supplemental Filings”) raising additional claims under § 2255. (See ECF Nos. 257, 265, 266, 277, 278, 284, 283.)

Taken together, Romano's Second Motion and Supplemental Filings raise the following claims in support of his motion to vacate his sentence: (1) the Supreme Court's decisions in Johnson v. United States, 576 U.S. 591 (2015), and Sessions v. Dimaya, __U.S. __, 138 S.Ct. 1204 (2018), invalidated his convictions for conspiracy to murder; (2) the Government suborned perjury and introduced misleading evidence during his trial; (3) the Federal Bureau of Investigation (“FBI”) violated FBI policy when it opened its investigation into the murder conspiracy; (4) the Government's investigation was predicated on information from an unreliable confidential informant, (5) the Government's reliance on the confidential informant violated FBI guidelines, (6) his underlying fraud conviction is invalid due to an undisclosed conflict of interest between the Government and one of his former defense investigators, and (7) his Confrontation Clause rights were violated during his trial.

In response, the Government argues that Romano's Second Motion and Supplemental Filings are procedurally barred, lack merit, and must be dismissed. For the reasons set forth below, the Court agrees with the Government and declines to hold an evidentiary hearing on Romano's Second Motion because “the motion and the files and records of the case conclusively show that” he is not entitled to any relief. 28 U.S.C. § 2255(b).

II. Legal Standard

Under 28 U.S.C. § 2255(a), a federal prisoner may collaterally challenge his sentence on the ground that “the sentence was imposed in violation of the Constitution or laws of the United States.” To obtain relief under § 2255, a defendant must establish “a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes ‘a fundamental defect which inherently results in a complete miscarriage of justice.'” United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). Because Romano is proceeding pro se, the Court must construe his submissions liberally, “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).

III. Discussion

A. Romano's Second Motion is Procedurally Barred

As a threshold matter, Romano's Second Motion and Supplemental Filings are procedurally barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f)(1). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a motion for relief pursuant to 28 U.S.C. § 2255 is subject to a one-year limitation period that runs from the latest of several dates, including “the date on which the judgment of conviction becomes final,” § 2255(f)(1), “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review[,]” § 2255(f)(3), and “the date on which the facts supporting the claim or claims presented could have been...