MEMORANDUM AND ORDER
Beryl
A. Howell, Chief Judge.
Pending
before the Court is the defendant's pro se
Motion for an Indicative Ruling on a Motion for Relief that
is Barred by a Pending Appeal (“Def.'s
Mot.”), ECF No. 276, which this Court construes as a
motion under Federal Rule of Civil Procedure 62.1(a), rather
than under Federal Rule of Criminal Procedure 37(a) as relied
upon by the defendant, because the rules of civil procedure
apply to habeas cases such as this one. See
Gonzalez v. Crosby, 545 U.S. 524, 529 (2005); United
States v. Arrington, 763 F.3d 17, 22 (D.C. Cir. 2014)
(applying Crosby's rationale to post-conviction
civil proceedings under 28 U.S.C. § 2255). Federal Rule
of Civil Procedure 62.1 permits a district court, “[i]f
a timely motion is made for relief that the court lacks
authority to grant because of an appeal that has been
docketed and is pending, ” to “defer considering
the motion, ” “deny the motion, ” or
“state either that it would grant the motion if the
court of appeals remands for that purpose or that the motion
raises a substantial issue, ” Fed.R.Civ.P. 62.1(a).
This
Court denied the defendant's motion for a new trial in a
Memorandum and Order, United States v. Hall, No.
04-cr-543 (BAH), 2018 WL 6434772 (D.D.C. Dec. 7, 2018)
(addressing certain arguments), and, following an evidentiary
hearing, in an oral ruling, see Min. Entry (Dec. 13,
2018); Tr. of Evidentiary H'rg, Dec. 13, 2018
(“H'rg Tr.”) at 101:16-106:8, ECF No. 275
(addressing remaining arguments). The defendant timely
appealed, see Notice of Appeal, ECF No. 268, and
this Court issued a Certificate of Appealability,
see Order (Jan. 23, 2019), ECF No. 273.
The
defendant's appeal is currently pending before the D.C.
Circuit, see United States v. Hall, 18-3092 (D.C.
Cir. appeal docketed Dec. 31, 2018), and thus this Court no
longer has jurisdiction over the defendant's case.
See Griggs v. Provident Consumer Discount Co., 459
U.S. 56, 58 (1982) (per curiam) (noting that, as a general
rule, “[t]he filing of a notice of appeal is an event
of jurisdictional significance-it confers jurisdiction on the
court of appeals and divests the district court of its
control over those aspects of the case involved in the
appeal”); United States v. DeFries, 129 F.3d
1293, 1302 (D.C. Cir. 1997) (per curiam).
Given
this procedural posture, the defendant seeks only an
indicative ruling. Although the defendant couches his motion
in rules of criminal rather than civil procedure, the Court
construes his motion as one made under Federal Rule of Civil
Procedure 60(b)(1), (2), (3), or (6) to reopen the judgment
denying his habeas motion on the proffered ground of
ineffective assistance of counsel in his habeas
proceedings. This motion is denied.
The
specific bases for the defendant's assertions that his
attorney in his habeas proceedings provided
ineffective assistance of counsel are that this attorney: (1)
overlooked or otherwise failed to pursue what the defendant
claims was “newly discovered” evidence and other
meritorious arguments the defendant made in his pro
se motions and supplements, including arguments made in
a pro se Motion to Amend Pleadings as a Matter of
Course or in the Alternative by Leave of Court, ECF No. 229,
which was denied as moot, with the parties' agreement, in
light of a later, counseled motion, see Min. Order
(Dec. 13, 2017); Def.'s Mot. at 6-7 & n.16; (2) was
operating under a conflict of interest, in part because the
attorney agreed to dismiss the defendant's pro
se Motion to Amend without adequate consultation with
the defendant, Def.'s Mot. at 6-7; and (3) failed to
adequately prepare for an evidentiary hearing on the
defendant's habeas motion because the attorney
failed to subpoena an attorney, Marc Sliffman, to testify
regarding the defendant's advice-of-counsel defense,
id. at 7-9.
Although
the defendant purports to focus his motion on the alleged
ineffectiveness of the attorney assisting him with his
habeas proceeding, a review of his motion and
supporting documentation reveals that the defendant's
motion actually reflects another attempt to relitigate the
merits of his habeas case. That is, the arguments
that the defendant accuses his counsel of overlooking are,
for the most part, arguments that this Court already
considered and rejected in denying his § 2255 motion.
For
example, the defendant claims that “throughout [his]
hearings and/or proceedings, exculpatory evidence discovered
after trial . . . fell short of being utilized by all defense
counsels of record, ” id. at 2, and that his
habeas counsel “actively represented
conflicting interests when he unilaterally dismissed
[defendant's] newly discovered documents proving actual
innocence, ” id. at 6-7. Yet this purported
“exculpatory evidence” and “newly
discovered documents proving actual innocence” relate
to the defendant's persistent argument, rejected both on
direct appeal by the D.C. Circuit and as grounds for
habeas relief in this Court, that the
defendant's scheme to “flip” residential
properties did not qualify as bank fraud. See Id. at
10-21 (listing various facts and arguments regarding mortgage
financing, federally insured financial institutions, and
whether the defendant's conduct is properly considered
bank fraud). The D.C. Circuit rejected the defendant's
challenges to his bank fraud convictions on these grounds on
direct appeal, see United States v. Hall, 613 F.3d
249, 252-53 (D.C. Cir. 2010), and this Court rejected his
attempts to relitigate those convictions in a habeas
proceeding, see Hall, 2018 WL 6434772, at *4-5. Just
as before, the defendant has failed to establish “how
any intervening change of law or other exceptional
circumstance would allow him to relitigate this issue,
” id. at *5.
Further,
although the defendant argues that his habeas
counsel was ineffective by not calling a witness to testify
at the evidentiary hearing, this Court's resolution of
the habeas petition-which focused in part on whether
the defendant's trial counsel was ineffective for failing
to call or seek an advice-of-counsel instruction related to
that same witness-explained in detail why trial counsel had
sound strategic reasons for failing to call this witness or
to seek such an instruction, and why the defendant had not
established that he suffered prejudice as a result of his
trial counsel's alleged failures. See H'rg
Tr. at 103:1-105:23 (“[B]ased on what [the trial
counsel] said about the risks of calling Mr. Sliffman, the
decision not to do so makes sound sense.”). Those same
risks, including the possibility that Mr. Sliffman may have
been deemed a co-conspirator, foreclosing an
advice-of-counsel defense, id. at 105:3-11, or that
he would have deflected any criminal liability onto the
defendant, id. at 105:12-18, apply equally to the
defendant's habeas attorney's failure to
call this witness to testify at the evidentiary hearing. In
addition, the defendant's own testimony at trial and in
his habeas hearing established that he did not tell
Mr. Sliffman all of the material facts pertinent to the
activities in question, negating the viability of an
advice-of-counsel defense. Id. at 105:19-23.
Accordingly,
any Rule 60(b) motion made on the grounds the defendant
raises must be denied, because a motion that attacks the
court's prior resolution of a § 2255 claim on the
merits is “similar enough” to a habeas
motion that the district court, under 28 U.S.C. § 2244
and 28 U.S.C. § 2255(h), may not consider the motion
without prior authorization from the court of appeals.
Crosby, 545 U.S. at 531-32 & n.5 (noting that
“an attack based on . . . [defendant's] habeas
counsel's omissions . . . ordinarily does not go to the
integrity of the proceedings, but in effect asks for a second
chance to have the merits determined favorably”
(citation omitted)); Arrington, 763 F.3d at 22-24;
United States v. Washington, 653 F.3d 1057, 1065
(9th Cir. 2011) (“Because the gravamen of
[defendant's] assertions go to the merits of his
conviction, his Rule 60(b) motion is, in fact, a § 2255
motion in disguise.”). With the exception of faulting
his habeas attorney for failing to call a witness at
an evidentiary hearing, the defendant's reasons for
seeking to reopen the judgment in his habeas case
are merits-based challenges to this Court's previous
rulings on those same arguments. Those challenges, as well as
the defendant's motion to replace his current
court-appointed attorney, which motion is included in the
documents filed in this Court, see ECF No. 276 at
32-37, are most appropriately addressed in the D.C. Circuit,
where the defendant's appeal remains pending. See
United States v. All Assets Held in Account No.
80020796, No. 13-cv-1832 (JDB), 2017 WL 6886092, at *2
(D.D.C. Nov. 15, 2017) (“There is little indication the
drafters of Rule 62.1 intended it to be used . . . to ask a
district court to issue an indicative ruling reconsidering
the same question being reviewed by the court of
appeals.” (citation and internal alterations omitted)).
Accordingly,
it is hereby
ORDERED
that the defendant's pro se Motion for an
Indicative Ruling is DENIED.
SO
...