Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BIEREGU v. U.S.

September 12, 2005.

POLYNS BIEREGU, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge

OPINION

After a six-week jury trial petitioner, Polyns Bieregu, was convicted of conspiring to import more than 100 grams of heroin into the United States from a place outside thereof and with conspiring to possess with intent to distribute more than 100 grams of heroin. He was sentenced to 194 months imprisonment. The Court of Appeals affirmed the conviction and sentence United States v. Bieregu, 16 F.3d 405(3d Cir. 1993), cert. denied, Bieregu v. United States, 114 S. Ct. 1626 (1994).

  As will be detailed below, there followed a number of post conviction relief applications and other proceedings including a petition filed on May 18, 1994 pursuant to 28 U.S.C. § 2255 (the "Fist § 2255 Petition") which the court denied. The matter is now before the court on a challenge to denial of the First § 2255 Petition in the form of a "Motion to Vacate Conviction and Set Aside Sentence Pursuant to Fed. Rule of Civil Procedure Rule 60(B)(3)(4)(6)." The government cross-moved "for an order dismissing the second or successive 28 U.S.C. § 2255 petition . . . nominally filed pursuant to Fed.R.Civ.Proc. 60(b)." For the reasons set forth below the court will deny Petitioner's motion and will grant the government's cross-motion to dismiss.

  I. Background

  In his First § 2255 petition, filed in 1994, Petitioner alleged, among other things, that his court-appointed trial counsel, Marc Calello, Esq., had been ineffective for failing to interview and call as a witness at trial an individual named Nicole Simmons. According to Petitioner, Simmons would have testified that, contrary to government witness Earnest Okereke's testimony, it was a Mr. Green, not Petitioner, who sent her to Singapore to pick up a quantity of drugs.

  The Court dismissed without an evidentiary hearing all the other ground raised in the First § 2255 Petition, but because the ineffective assistance of counsel claim raised factual issues, it appointed able counsel to represent Petitioner and ordered an evidentiary hearing. Petitioner's counsel moved for the production of all government memoranda regarding Simmons. The court denied the motion but inspected the material in camera to determine whether the materials contained information subject to disclosure pursuant to Brady v. Maryland, 373 U.S. 83 (1963). As petitioner states, the court "read the memoranda and found no such material. Rather, the interviews not only confirmed the Simmons drug transaction about which Okereke testified at trial, they suggested that Ms. Simmons had knowledge of other drug transactions in which Petitioner participated."

  Appointed counsel undertook representation of Petitioner with utmost dedication. He flew to Texas in order to interview Ms. Simmons. After he completed his investigation he reported at the evidentiary hearing that he would present no evidence to supplement Petitioner's petition. The obvious conclusion to be drawn was that he had unearthed no evidence that Ms. Simmons would have contradicted Okereke's testimony about Petitioner's role in the Singapore transaction. On January 19, 1995 the court ordered that the ineffective assistance of counsel claim be denied. Petitioner appealed and the Court of Appeals affirmed on October 10, 1995.

  On February 14, 1996, Petitioner filed a petition (the "Second § 2255 Petition") claiming that the government violated his due process and Brady rights by failing to turn over to the defense interview memoranda in which Ms. Simmons allegedly exculpated Petitioner and identified another person as the person who had recruited her to import narcotics into the United States. On June 6, 1996 the court denied the petition and the Court of Appeals affirmed.

  On July 25, 2000, Petitioner initiated a proceeding in the Court of Appeals seeking leave to file another § 2255 petition (the "Third § 2255 Petition") in which he sought to raise claims under Apprendi v. New Jersey, 530 U.S. 466 (2000). He contended that Apprendi created a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable to Petitioner. By order dated September 14, 2000 the Court of Appeals denied Petitioner's application, finding that he had failed to meet the standard for second or successive petitions.

  Petitioner also filed a series of actions pursuant to 42 U.S.C. § 1983. In the most recent he sought civil damages against the United States for alleged violations of the Vienna Convention on Consular Relations (the "Vienna Convention") occurring as a result of his arrest in the underlying criminal matter and the failure of the government to advise him of his right to consular notification. The court dismissed Petitioner's complaint by order dated May 1, 2003. Bieregu v. Ashcroft, 259 F. Supp. 2d 342 (D.N.J. 2003).

  The instant action was filed on May 23, 2005.

  II. Petitioner's Contentions

  With respect to his principal claim for relief, Petitioner denies that his petition is a successive § 2255 petition; rather, he asserts that he is proceeding pursuant to Fed.R.Civ.P. 60(b)(3), (4) and (6) in order to obtain an order vacating the court's order of January 19, 1995 dismissing his ineffective assistance of counsel claim. He alleges that the proceeding which produced the judgment of January 19, 1995 was fraught with fraud between movant's counsel and the government in which they conspired to suppress evidence crucial to Bieregu in that proceeding. Movant states that Ms. Simmons provided Mr. Ryan with the fact that she knew Mr. Green only and that Mr. Green was the man who had sent her to Singapore and that she provided the government with the information during their previous interview. Petitioner alleges that "Mr. Ryan, working in cohaut (sic) with the government, suppressed this information material and helpful to Bieregu's evidentiary hearing from seeing the light of the day." (Pet. at 1).

  In his response to the government's motion to dismiss, Petitioner elaborates on these contentions stating: In this case, Ms. Nicole Simmons will testify to the fact that during Mr. Ryan's visit at the Federal Correctional Institution where [s]he was incarcerated that she told Mr. Ryan that Mr. Green, not Polyns Bieregu, was the very individual who sent her to Singapore. She will further testify that she told the government during their interview that Mr. Green, not Polyns Bieregu, was the individual who sent her to Singapore. She will further testify that the government presented her with a picture of one individual of which she could not identify to be that Mr. Green. Simmons testimony will establish the fact that Bieregu's counsel suppressed this fact. Her testimony will further establish the fact that the government memoranda report which the court examined in chambers and concluded the interview not only confirmed the Simmons drug transaction about which Okereke testified at trial, they suggested that Simmons had knowledge of other drug transaction in which petitioner participated, was a feral (sic) fallacy against Bieregu, and the court was not apodictic (sic) on the fact contained in the government memoranda report, as to whom Simmons actually identified in the memoranda report, which the court examined in camera. Simmons' testimony will contradict the court's conclusion and establish the fact that Simmons identified Mr. Green, not Polyns Bieregu, in the government memoranda report. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.