10-672-pr
         Ferranti v. United States
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER
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ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16th day of May, two thousand twelve.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                RAYMOND J. LOHIER, JR.,
 8                CHRISTOPHER F. DRONEY,
 9                         Circuit Judges.
10
11       JACK FERRANTI,
12
13                                     Petitioner-Appellant,
14
15                      v.                                           10-672-pr
16
17       UNITED STATES OF AMERICA
18
19                                     Respondent-Appellee.
20
21
22
23
24
25       FOR PETITIONER-APPELLANT:                    INGA L. PARSONS, Marblehead, MA
26
27       FOR RESPONDENT-APPELLEE:                     TARYN A. MERKL, Assistant United
28                                                    States Attorney (Emily Berger,
29                                                    Assistant United States
30                                                    Attorney, on the brief), for
31                                                    Loretta E. Lynch, United States
32                                                    Attorney for the Eastern
33                                                    District of New York, Brooklyn,
34                                                    NY
35
36
1         Appeal from the United States District Court for the
2    Eastern District of New York (Korman, J.).
3
4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the United States District

6    Court for the Eastern District of New York is AFFIRMED.

7        Petitioner-Appellant Jack Ferranti ("Ferranti") appeals

8    from the judgment entered in the United States District

9    Court for the Eastern District of New York (Korman, J.),

10   dismissing his successive habeas petition to vacate his

11   conviction under 28 U.S.C. § 2255.   Ferranti's petition

12   arises from his conviction for arson homicide in violation

13   of 18 U.S.C. § 844(i), arson conspiracy in violation of 18

14   U.S.C. § 371, related mail fraud counts resulting from

15   insurance fraud in violation of 18 U.S.C. § 1341, and

16   witness tampering in violation of 18 U.S.C. § 1512(b).     We

17   assume the parties' familiarity with the facts, procedural

18   history, and issues presented for review.

19       Ferranti contends that the district court erred by

20   concluding that he failed to satisfy his burden for filing a

21   successive habeas petition.   We disagree.   After the passage

22   of the Antiterrorism and Effective Death Penalty Act

23   (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a

24   claim presented in a successive § 2255 petition based on


                                   2
1    newly discovered evidence will be dismissed unless the

2    petitioner adduces “newly discovered evidence that, if

3    proven and viewed in light of the evidence as a whole, would

4    be sufficient to establish by clear and convincing evidence

5    that no reasonable factfinder would have found the movant

6    guilty of the offense.”   28 U.S.C. § 2255(h)(1).   The

7    AEDPA’s gatekeeping provisions “impose[] stringent limits on

8    a prisoner’s ability to bring a second or successive

9    application for a writ of habeas corpus.”   Torres v.

10   Senkowski, 

, 150 (2d Cir. 2003) (citation and

11   internal quotation marks omitted).

12       The district court mistakenly applied the standard set

13   forth in 28 U.S.C. § 2244(b)(2)(B)(ii), which governs the

14   successive habeas petitions of those imprisoned pursuant to

15   state convictions, and which requires a petitioner to

16   demonstrate that “the facts underlying the [successive]

17   claim, if proven and viewed in light of the evidence as a

18   whole, would be sufficient to establish by clear and

19   convincing evidence that, but for constitutional error, no

20   reasonable factfinder would have found the applicant guilty

21   of the underlying offense.”   28 U.S.C. § 2244(b)(2)(B)(ii)

22   (emphasis added).   The district court thus imposed on

23   Ferranti the additional requirement, not applicable to

                                   3
1    successive petitioners under § 2255, of demonstrating that

2    the exclusion of exculpatory evidence from his trial was the

3    result of constitutional error.

4        However, the district court’s application of an

5    incorrect standard is harmless.      Although the district court

6    determined that Ferranti had failed to demonstrate

7    constitutional error, it also dismissed his successive

8    petition on the alternative basis that “considering all of

9    the evidence, Ferranti simply has not established that no

10   reasonable factfinder would have found him . . . guilty of

11   the underlying offense.”   It thus unequivocally established

12   that it would have reached the same conclusion had it

13   applied the correct standard.

14       We agree with the district court that the new evidence

15   underlying Ferranti’s successive petition is not sufficient

16   to establish by clear and convincing evidence that no

17   reasonable factfinder, given the benefit of the new

18   evidence, would have found him guilty of the underlying

19   offense.   28 U.S.C. § 2255(h)(1).     This standard is more

20   stringent than the pre-AEDPA gateway standard for filing a

21   successive petition, which itself was quite difficult to

22   satisfy and met only in the most “extraordinary case[s].”

23   Schlup v. Delo, 

, 322 (1995); see also House v.

                                     4
1    Bell, 

, 539 (2006).       In assessing the petition,

2    we consider both newly-presented evidence and evidence from

3    trial, "without regard to whether it would necessarily be

4    admitted under ‘rules of admissibility that would govern at

5    trial.'"   

(quoting Schlup, 

   at 327-28).

7        Ferranti falls far short of meeting his burden to

8    demonstrate that with the benefit of the newly discovered

9    evidence, no reasonable factfinder would have found him

10   guilty of arson.   Almost all of the evidence submitted by

11   Ferranti, at best, serves only to discount the trial

12   testimony of the fire marshals that the fire was set using

13   accelerant.   None of this evidence, however, establishes

14   that the fire was accidental.       Moreover, even in light of

15   all of the purportedly newly-disclosed and favorable

16   evidence, other incriminating evidence concerning Ferranti's

17   motive, intent, and consciousness of guilt remains

18   uncontradicted and devastating to Ferranti.

19       Ferranti also argues that there was a conspiracy to

20   convict him because a firefighter died in the fire.       The

21   district court rejected Ferranti's conspiracy theory,

22   concluding that "Ferranti has not presented any evidence of

23   (and nothing in the record supports) a far-reaching

                                     5
1    conspiracy by police to frame him."     We agree.   Ferranti's

2    unsubstantiated allegations of governmental misconduct and

3    suppression of evidence are insufficient to sustain his

4    successive habeas petition.     Cf. Heath v. U.S. Parole

5    Comm'n, 

, 89-90 (2d Cir. 1986).

6        Ferranti also contends that the district court erred in

7    relying on the guilty plea of his co-defendant, Thomas

8    Tocco, because the "objective circumstances of the plea

9    colloquy actually prove the untrustworthiness of the plea.”

10   This claim has no merit.     Tocco's plea is strong evidence

11   that the fire was an arson and directly contradicts

12   Ferranti's argument to the contrary.     Although Tocco did not

13   name Ferranti as a coconspirator during the plea colloquy,

14   in the context of all the other evidence that connected both

15   Tocco and Ferranti to the fire, Tocco's plea clearly

16   inculpates Ferranti.

17       The district judge also did not err in discounting

18   Tocco's subsequent recantation, made approximately thirteen

19   years after Tocco’s guilty plea to a private investigator

20   hired by Ferranti.     The district court reasonably concluded

21   that the "credibility of Tocco's unsworn hearsay statements

22   are undermined by the fact that he is already incarcerated

23   and has nothing to lose by lying, and they are contradicted

                                     6
1    by his sworn plea colloquy as well as the testimony of the

2    Anthonys and Beverly Danielius at trial, who placed Tocco at

3    the scene on the night of the fire."

4        Next, we reject Ferranti’s claim that the district

5    court should have held “hearings” to consider the videotapes

6    of the fire and the trustworthiness of Tocco’s plea.     Under

7    § 2255(b), the district court must provide a hearing on a

8    habeas petition "[u]nless the motion and the files and

9    records of the case conclusively show that the prisoner is

10   entitled to no relief."    28 U.S.C. § 2255(b); see also

11   Raysor v. United States, 

, 494 (2d Cir. 2011).

12   Although “[o]ur precedent disapproves of summary dismissal

13   of petitions where factual issues exist[], . . . it permits

14   a ‘middle road' of deciding disputed facts on the basis of

15   written submissions."     Pham v. United States, 

,

16   184 (2d Cir. 2003).

17       Here, a hearing was unnecessary because the district

18   court had sufficient information in the record to "decid[e]

19   disputed facts on the basis of written submissions."       

submitted extensive briefing and numerous

21   exhibits to the district court regarding the contents of the

22   videotapes of the fire.    Ferranti does not explain how this

23   information was insufficient to assess the import of the

                                     7
1    tapes.   Furthermore, as to Tocco's plea, the district court

2    had Tocco's sworn plea and the affidavit by Ferranti's

3    private investigator noting that Tocco had recanted.        This

4    information was sufficient for the district court to assess

5    Ferranti's arguments concerning the plea.

6        We also reject Ferranti’s claim that "full discovery"

7    was warranted.     "A habeas petitioner, unlike the usual civil

8    litigant in federal court, is not entitled to discovery as a

9    matter of ordinary course."      Bracy v. Gramley, 

,

10   904 (1997).    Rather, discovery is allowed only if the

11   district court, acting in its discretion, finds "good cause"

12   to allow it.     

standard is satisfied

13   "‘where specific allegations before the court show reason to

14   believe that the petitioner may, if the facts are fully

15   developed, be able to demonstrate that he is . . . entitled

16   to relief.'" 

Harris v. Nelson, 394

, 300 (1969)). The district court enjoys "broad

18   discretion" to determine whether discovery is warranted in a

19   habeas proceeding, and its decision will be overturned only

20   if it abused its discretion.      Nieblas v. Smith, 

,

21   31 (2d Cir. 1999).     Here, Ferranti failed to set forth

22   specific allegations that establish the good cause necessary

23   to warrant additional discovery.

                                      8
1        Finally, Ferranti’s contention that the district court

2    allegedly compelled him "to waive his Fifth Amendment

3    privilege in order to meet the gateway standard" has no

4    merit.   In United States v. Male Juvenile, 

, 42

5    (2d Cir. 1997), we rejected the argument that a district

6    court violated the defendant's Fifth Amendment rights when

7    it stated that the defendant had not testified at a

8    suppression hearing.   We reasoned that the district court

9    explicitly stated that it “infer[s] nothing from

10   [defendant’s] failure to testify” and was “simply indicating

11   that, by not testifying, defendant had failed to contradict

12   the government’s evidence with his own testimony.”    

precisely what the district court did here.      In

14   assessing the overall nature of the evidence of guilt, the

15   district court noted that "it is not without significance

16   that Jack Ferranti failed to take the witness stand at his

17   own trial, he did not speak at his sentencing, and he failed

18   to file any affidavit in connection with his petition

19   addressing the evidence against him."   The district court

20   made clear, however, that it "refer[red] to this not to draw

21   any inference from his failure to affirm his innocence under

22   oath. . . . I refer to it only to evaluate the totality of

23   the evidence necessary to determine whether Ferranti can

                                   9
1    meet the AEDPA threshold for filing a successive petition.”

2    Ferranti's contention that the district court "expressly and

3    openly advis[ed]" that it was drawing a negative inference

4    is simply untrue.

5        We have considered all of Ferranti’s remaining

6    arguments and, after a thorough review of the record, find

7    them to be without merit.   For the foregoing reasons, the

8    judgment of the district court is hereby AFFIRMED.

 9                               FOR THE COURT:
10                               Catherine O’Hagan Wolfe, Clerk
11
12




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