: , FILED var cong eh Age Ls #: IN THE Be FILED: 9/6/2022. UNITED STATES DISTRICT COURT Spe Pep Gd Aap Mae FILED: 7/0/2022 ___! SOUTHERN DISTRICT OF NEW YORK cine 4 ey in 29 AAS cI
SHAJOHNNY SANTANA, Civil Case No. 21-Cv-2659 Movant, Crim. Case No. 17-Cr-0438 Ve . UNITED STATES OF AMERICA, United States District Court Honorable Valerie E. Caproni Respondent.
MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE
Comes Now, Shajohnny Santana, the undersigned Pro se Movant, and files this motion to alter and amend this Court's July 28, 2022 Opi- nion & Order (hereafter, Order. Pe denying his motion under 28 U.S.C. §2255, pursuant to the Federal Rules of Civil Procedure (F.R.Civ.P.), Rule 59(e). In support of this Honorable Court. alter- ing or amending its previous judgment and granting him an evidenti- ary hearing, he states as follows based in law and fact. This pro se movant moves this Court to alter or amend its Order based on the clear error of law and fact in overlooking the fact that counsel's affidavit, along with those of movant's family mem- bers speaks to matters outside the record. See Chang v. United States,, 250 F.3d. 79, 85 (2nd Cir. 2000)(quoting Armienti v. United States, 234 F.3d. 820 (2nd Cir. 2000)). Clearly, based:on the record in this case, besides counsel's self serving affidavit which acknowledges the presence of other individuals directly privied to the attorney-ciient conversations
~ 1.
that are to crux of movant's collateral claims. See Movant's §2255 Reply, p- 3; hereafter, "Reply, p. __")(pointing out that counsel visited movant "with associate counsel and [his] legal assistance" yet the (government has not preduced any supporting affidavits to these attorney-client conversation where movant avers he was sur- reptitiously induced to plea guilty); see alsc, Movant's Memoxandum in Support of §2255, p. 6; hereafter, "§2255,, p. _""). Without producing these counter affidavits, this Court is argu- ably resolving movant's viable ineffective assistance. □□ counsel claim in contravention of movant's due process rights. Especially whan, this Court discusses movant's submission of affidavits from his family members as in sufficient to support his ineffective claim but makes no mention or weighs the essential fact of the other evi- dentiary support of movant's viable claim. (See Ordec, p. 7-9). Thus, it is movant's position that this absent evidence creates a clear error amounting to a manifest injustice when a habeas movant has only one opportunity to collaterally challenge his conviction generally. See 28°U.S.C. §2255(£), as amended by the AEDPA. Clearly, movant's ineffective claim was not premised on if.counsel. erred_when recommending movant entering a guilty plea as summed up by this Gourt; (see Order, p. 7), but whether counsel induced him to enter a guilty plea when he wanted to proceed to trial by deceptive means. The §2255 record evidence supports movant arguably was induced to plea:guilty by the false promises of counsel which were told to him in the presence of others, then expressed to his family by those Same actors. Moreover, the promises of counsel was given a level of credibility when his words were echoed by this Court during the
~~ 2
plea hearing in which is stated, "99 percent of the time it's going to be the same as what the attorneys come up with[.]" (See June 19, 2019 Plea Hearing Transcripts, p. 14). Thus, the full extent of the conversation betwwen movant and counsel, in the presence of other known and named individuals cou- pled with the affidavits of movant's family cannot so Lightly be dis- missed in these collateral proceedings. See Chang, surpa at pp. 84, 86; seel also, United States v. Tolliver, 800 F.3d. 138, 141 (3rd Cir. 2015}(when §2255 allegation is not clearly resolved by the re- cord a hearing should be held); Raines v. United States, 423 F.2d. 526, 539 (4th Cir. (Although it is in a cidstrict court's sound dis- cretion to hold a hearing, "“{wjhen the issue is one: of credibility resolution on the basis of affidavits can rarely. be conclusive"). In this instant case, requiring that other individuals admit- tedly present during attorney-client conversations, when ‘counsel induced movant like in this case may reasonably alter this Court's conclusion making reconsideration appropriate. See Schrader v. CXS Transp. Inc., 70 F.3d. 255, 257 (2nd Gir. 1995)(The strict standard for a motion to alter or amend allows for reconsideration when evi- dence is overlooked and can reasonably be expected to alter the con- clusion reached by a court). The general law of this circuit requires courts to consider at an evidentiary hearing factual disputes to resolve what was told to a defendant to induce him to enter a guilty plea, waiving the right to trial. See United States v. Nelson, 277 F.3d. 164 (2nd Cir. 2002) (citing Brady v. United States, 397 U.S. 742, 755 (1970)). Important- ly, notwithstanding this Court's reasonaing that "enlisting" a de- fendant's family .members to induce-him to plea guilty is proper;
- 3-4
(see Order, p. 8), this takes onadifferent complexion when the en- listment was based on an improper bases. Especially since, movant's counsel has swore under penalty of perjury that other individuals were present during the attorney-client conversations, a significant fact that this Court appears to disregard. In sum, this Court alter or amend its judgment given the fact that movant has demonstrated a clear error of fact based. on the court disregarding and not weighing a key fact contained in counsel's af- fidavit which can support movant's claim. Wherefore, this Pro se Movant prays this Honorable Court srant this motion to alter or amend its July 28, 2022 Order under Rule 59(e) of the F.R.Civ.P. And, this Gourt grant any and all other re- lief it deems just and proper in the interest of fairness and jus- tice. Resp A£ully submitted, é oo □ se AEC. CELL Sg Fon! Mr. Shajolinny Santana Pro se Movant Reg. No. 77051-054 F.C.I. Ray Brook Post Office Box 900 Ray Brook, New York 12977 CERTIFICATE OF SERVICE BY MAIL. I hereby certify taht a true and complete copy of the foreoing has been given to prison officiais for mailing, first class postage prepaid, and sent to: Office of the U.S. Attorney for Southern Dis- tict of New York located at 147 St. Andrews Plaza, New York 10007. On :this 4d day of August, 2022, pursuant to 28 U.S.C. §1746.
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Mr. Shajohnny Santana Reg. No. 77051-054 Certified Mail Receipt Number F.G.1I. Ray Brook Post: Office Box 900 7021 1970 0001 6115 2326 Ray Brook, New York 12977 August 22, 2022 Office of the Clerk United States District Court Southern District of New York 500 Pearl Street New York, New York 10007 Re: Shajohnny Santana v. United States, ,Case No. 21-Cv-2659 (VEC) Dear Sir/Madam: Please find enclosed one (1) original and one (1) copy of the undersigned Pro se Movant's Motion to Alter or Amend Judgment pur- Suant to Federal Rules of Civil Procedure, Rule 59(e). I have enclosed the extra copy so that it can be fFile-stamped by your office in order to be returned to me in the self addressed Stamped envelope provided herein for my personal records and to ac- knowledge receipt of the same. As an aside, movant invokes the mailbox rule announced in the Supreme Court decision Houston v. Lack, 487 UsS.
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: , FILED var cong eh Age Ls #: IN THE Be FILED: 9/6/2022. UNITED STATES DISTRICT COURT Spe Pep Gd Aap Mae FILED: 7/0/2022 ___! SOUTHERN DISTRICT OF NEW YORK cine 4 ey in 29 AAS cI
SHAJOHNNY SANTANA, Civil Case No. 21-Cv-2659 Movant, Crim. Case No. 17-Cr-0438 Ve . UNITED STATES OF AMERICA, United States District Court Honorable Valerie E. Caproni Respondent.
MOTION TO ALTER OR AMEND JUDGMENT PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE
Comes Now, Shajohnny Santana, the undersigned Pro se Movant, and files this motion to alter and amend this Court's July 28, 2022 Opi- nion & Order (hereafter, Order. Pe denying his motion under 28 U.S.C. §2255, pursuant to the Federal Rules of Civil Procedure (F.R.Civ.P.), Rule 59(e). In support of this Honorable Court. alter- ing or amending its previous judgment and granting him an evidenti- ary hearing, he states as follows based in law and fact. This pro se movant moves this Court to alter or amend its Order based on the clear error of law and fact in overlooking the fact that counsel's affidavit, along with those of movant's family mem- bers speaks to matters outside the record. See Chang v. United States,, 250 F.3d. 79, 85 (2nd Cir. 2000)(quoting Armienti v. United States, 234 F.3d. 820 (2nd Cir. 2000)). Clearly, based:on the record in this case, besides counsel's self serving affidavit which acknowledges the presence of other individuals directly privied to the attorney-ciient conversations
~ 1.
that are to crux of movant's collateral claims. See Movant's §2255 Reply, p- 3; hereafter, "Reply, p. __")(pointing out that counsel visited movant "with associate counsel and [his] legal assistance" yet the (government has not preduced any supporting affidavits to these attorney-client conversation where movant avers he was sur- reptitiously induced to plea guilty); see alsc, Movant's Memoxandum in Support of §2255, p. 6; hereafter, "§2255,, p. _""). Without producing these counter affidavits, this Court is argu- ably resolving movant's viable ineffective assistance. □□ counsel claim in contravention of movant's due process rights. Especially whan, this Court discusses movant's submission of affidavits from his family members as in sufficient to support his ineffective claim but makes no mention or weighs the essential fact of the other evi- dentiary support of movant's viable claim. (See Ordec, p. 7-9). Thus, it is movant's position that this absent evidence creates a clear error amounting to a manifest injustice when a habeas movant has only one opportunity to collaterally challenge his conviction generally. See 28°U.S.C. §2255(£), as amended by the AEDPA. Clearly, movant's ineffective claim was not premised on if.counsel. erred_when recommending movant entering a guilty plea as summed up by this Gourt; (see Order, p. 7), but whether counsel induced him to enter a guilty plea when he wanted to proceed to trial by deceptive means. The §2255 record evidence supports movant arguably was induced to plea:guilty by the false promises of counsel which were told to him in the presence of others, then expressed to his family by those Same actors. Moreover, the promises of counsel was given a level of credibility when his words were echoed by this Court during the
~~ 2
plea hearing in which is stated, "99 percent of the time it's going to be the same as what the attorneys come up with[.]" (See June 19, 2019 Plea Hearing Transcripts, p. 14). Thus, the full extent of the conversation betwwen movant and counsel, in the presence of other known and named individuals cou- pled with the affidavits of movant's family cannot so Lightly be dis- missed in these collateral proceedings. See Chang, surpa at pp. 84, 86; seel also, United States v. Tolliver, 800 F.3d. 138, 141 (3rd Cir. 2015}(when §2255 allegation is not clearly resolved by the re- cord a hearing should be held); Raines v. United States, 423 F.2d. 526, 539 (4th Cir. (Although it is in a cidstrict court's sound dis- cretion to hold a hearing, "“{wjhen the issue is one: of credibility resolution on the basis of affidavits can rarely. be conclusive"). In this instant case, requiring that other individuals admit- tedly present during attorney-client conversations, when ‘counsel induced movant like in this case may reasonably alter this Court's conclusion making reconsideration appropriate. See Schrader v. CXS Transp. Inc., 70 F.3d. 255, 257 (2nd Gir. 1995)(The strict standard for a motion to alter or amend allows for reconsideration when evi- dence is overlooked and can reasonably be expected to alter the con- clusion reached by a court). The general law of this circuit requires courts to consider at an evidentiary hearing factual disputes to resolve what was told to a defendant to induce him to enter a guilty plea, waiving the right to trial. See United States v. Nelson, 277 F.3d. 164 (2nd Cir. 2002) (citing Brady v. United States, 397 U.S. 742, 755 (1970)). Important- ly, notwithstanding this Court's reasonaing that "enlisting" a de- fendant's family .members to induce-him to plea guilty is proper;
- 3-4
(see Order, p. 8), this takes onadifferent complexion when the en- listment was based on an improper bases. Especially since, movant's counsel has swore under penalty of perjury that other individuals were present during the attorney-client conversations, a significant fact that this Court appears to disregard. In sum, this Court alter or amend its judgment given the fact that movant has demonstrated a clear error of fact based. on the court disregarding and not weighing a key fact contained in counsel's af- fidavit which can support movant's claim. Wherefore, this Pro se Movant prays this Honorable Court srant this motion to alter or amend its July 28, 2022 Order under Rule 59(e) of the F.R.Civ.P. And, this Gourt grant any and all other re- lief it deems just and proper in the interest of fairness and jus- tice. Resp A£ully submitted, é oo □ se AEC. CELL Sg Fon! Mr. Shajolinny Santana Pro se Movant Reg. No. 77051-054 F.C.I. Ray Brook Post Office Box 900 Ray Brook, New York 12977 CERTIFICATE OF SERVICE BY MAIL. I hereby certify taht a true and complete copy of the foreoing has been given to prison officiais for mailing, first class postage prepaid, and sent to: Office of the U.S. Attorney for Southern Dis- tict of New York located at 147 St. Andrews Plaza, New York 10007. On :this 4d day of August, 2022, pursuant to 28 U.S.C. §1746.
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Mr. Shajohnny Santana Reg. No. 77051-054 Certified Mail Receipt Number F.G.1I. Ray Brook Post: Office Box 900 7021 1970 0001 6115 2326 Ray Brook, New York 12977 August 22, 2022 Office of the Clerk United States District Court Southern District of New York 500 Pearl Street New York, New York 10007 Re: Shajohnny Santana v. United States, ,Case No. 21-Cv-2659 (VEC) Dear Sir/Madam: Please find enclosed one (1) original and one (1) copy of the undersigned Pro se Movant's Motion to Alter or Amend Judgment pur- Suant to Federal Rules of Civil Procedure, Rule 59(e). I have enclosed the extra copy so that it can be fFile-stamped by your office in order to be returned to me in the self addressed Stamped envelope provided herein for my personal records and to ac- knowledge receipt of the same. As an aside, movant invokes the mailbox rule announced in the Supreme Court decision Houston v. Lack, 487 UsS. 266 (1987). Thank you for your time and attention to this very important matter, and I look forward to hearing from your office soon.
Very, truly yours, Ae f deieseoe Mr. Shaishnny Santana Pro se ‘Movant
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On July 28, 2022, this Court denied Mr. Santana's § 2255 petition for habeas relief. Dkt. 708. Mr. Santana now moves for reconsideration under Fed. R. Civ. P. 59(e). A Rule 59(e) motion to alter or amend a judgment will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked, and which the movant could reasonably believe would have altered the court's original decision. Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995). “The major grounds justifying reconsideration are ‘an intervening change in controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Cordero v. Astrue, 574 F. Supp. 2d 373, 379-80 (S.D.N.Y. 2008) (quoting Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). Mr. Santana has not identified any intervening change in controlling law, new evidence, or the need to correct a clear error that the Court made in denying his petition. Accordingly, the Court finds no basis to reconsider its previous judgment. Mr. Santana's motion for reconsideration is DENIED. The Clerk of Court is respectfully requested to terminate the open motion at docket entry 719.
SO ORDERED.
Date: 9/6/2022 HON. VALERIE CAPRONI UNITED STATES DISTRICT JUDGE