United States District Court, D. New Jersey
September 12, 2005.
POLYNS BIEREGU, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
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.
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
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
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.
Mr. Ryan will be called to testify as to whom Ms.
Simmons identified to be the very individual who had
sent her to Singapore during his interview with her.
And Mr. Ryan's testimony will further reveal that
Simmons identified Mr. Green to be the man who sent
her to Singapore. All these facts call into question
the integrity and the manner in which the first
Section 2255 was procured.
(Pet. Response at 2).
Petitioner further alleges that "Mr. Ryan, however, suppressed
the fact that Ms. Simmons had told him that it was Mr. Green, not
Plyns (sic) Bieregu, who had sent him to Singapore, and that she
had told the government of the same individual during their
previous interview. Upon his return, Mr. Ryan instead told
Bieregu that Ms. Simmons was simply a hostile witness without
details of her hostility. Upon which Petitioner snapped and
insisted on her production to testify and for eyewitness
identification. Mr. Ryan calmed movant down and advise (sic) him
that the double jeopardy argument should afford him relief."
(Pet. Response at 3).
The only basis for Petitioner's charges leveled at Mr. Ryan and
the government is information he states a friend provided him: Quite recently, on December 2004, Mr. Jeff Ozuka, a
friend of movant, acting on movant's instructions
contacted Ms. Simmons in Texas. Ms. Simmons told Mr.
Ozuka upon questioning that she had told Mr. Ryan
during interview that she knew Mr. Green and that Mr.
Green was the man who had sent her to Singapore and
that [she] had told government of the identity of
this individual (Mr. Green) during their interview.
And further that the government presented her with
picture of one individual of which she told them that
was not Mr. Green, and couldn't identify the picture
of the individual.
(Pet. at 5).
Petitioner did not submit a certification of either Mr. Jeff
Ozuka or of Ms. Simmons to support his contentions.
III. Rule 60(b)
The government argues persuasively that the petition should be
construed as a second or successive § 2255 petition and dismissed
for lack of jurisdiction because he has not obtained
authorization to file it from the Court of Appeals. Under
28 U.S.C. §§ 2255 and 2244, "[b]efore a second or successive
application . . . is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application." §
2244(b)(3)(A). Although Petitioner styles his petition a Rule
60(b) motion the government contends that because Petitioner
actually seeks to mount yet another attach on his underlying
criminal conviction his application is in fact a § 2255 petition.
In Pridgen v. Shannon, 380 F.3d 721 (3d Cir. 2004), the Court
of Appeals held that whenever a purported Rule 60(b) motion
seeking to reopen a previous § 2255 proceeding actually seeks to
attack collaterally the petitioner's underlying conviction rather
than "the manner in which the earlier habeas judgment was
procured," the matter should be treated as a successive § 2255
petition subject to the limitations on such petitions as provided
It is readily apparent that Petitioner's objective is to
discredit the testimony of government witness Ernest Okereke and thereby, as he put it in
the title to his motion, "to vacate conviction and set aside
sentence." In view of the paucity of the evidence that Petitioner
has cited to support his speculation that his assigned counsel
and the government conspired to deprive him of evidence which
would be useful in challenging Okereke's testimony, it would not
be unreasonable to conclude that his petition is nothing more
than another of his § 2255 petitions challenging his underlying
criminal conviction on the ground that Nicole Simmons should have
been called to testify in his defense at trial and that her
testimony would have weighed in his favor. However, facially the
petition is an attack on the manner in which the earlier § 2255
judgment was procured. Accordingly, it will be evaluated under
Rule 60(b) standards.
Rule 60(b)(2) relates to "newly discovered evidence which by
due diligence could not have been discovered in time for a new
trial under Rule 59(b)." Rule 60(b)(3), one of the subsections of
Rule 60(b) upon which Petitioner specifically relies, provides
that a court may relieve a party from a final civil judgment for
reasons of "fraud . . . misrepresentation, or other misconduct of
an adverse party." The new evidence which Petitioner advances in
his conversation with his friend Ozuka, concerning Ozuka's
conversations with Nicole Simmons, and the fraud or
misrepresentation he advances is the alleged failure of his
counsel to report that Ms. Simmons told him that it was a Mr.
Green, not Petitioner who instructed her to travel to Singapore
on a drug mission. Disregarding the insubstantiality of any
factual underpinning of these allegations, neither can be
advanced under subsections (2) or (3). Motions brought for these
reasons must be brought "not more than one year after the
judgment, order, or proceeding was entered or taken." The
judgment which is the subject of the instant petition was entered
on or about January 19, 1995. The instant petition was filed more
than ten years later on May 23, 2005.
Subsections (4) of Rule 60(b), upon which Petitioner also
relies specifically, provides that a party may seek relief from a
final civil judgment when the judgment is void. "A judgment can
be voided on two grounds: (1) if the rendering court lacked
subject matter jurisdiction or (2) if it acted in a manner
inconsistent with due process of law." Construction Drilling,
Inc. v. Chusid, 2005 WL 1111760, *3 (3d Cir. May 11, 2005). This
court obviously had jurisdiction. To resolve the issue that
Petitioner raised it appointed counsel to represent him and held
an evidentiary hearing. The judgment was affirmed on appeal. None
of the proceedings were conducted in a manner inconsistent with
due process of law.
Petitioner also relies on subsection (6) of Rule 60(b) which
permits a court to grant relief for "any other reason justifying
relief from the operation of the order." Courts have defined the
circumstances in which this broadly phrased provision may be
applied. Motions brought pursuant to it are subject to the
general requirement that Rule 60(b) relief is "intended to be a
means for accomplishing justice in extraordinary situations."
Moolenaar v. Government of the Virgin Islands, 822 F.2d 1342,
1346 (3d Cir. 1987). Relief under subsection (6) is only
appropriate when the movant can show "(1) that the reason for the
relief sought under 60(b)(6) is not embraced within the various
provisions of 60(b)(1-5); and (2) that exceptional circumstances
exist which warrant the granting of extraordinary relief."
Stradley v. Cortez, 516 F.2d 488, 494 (3d Cir. 1975).
Petitioner's assertion that his counsel failed to submit to the
court evidence that Ms. Simmons contradicted Okereke's testimony
can only be the speculation of a person disappointed with the
result of the hearing held ten years ago. He supports it neither
with a certification of his supposed informant nor with a certification of Ms. Simmons
herself. The Supreme Court denied certiorari in Petitioner's
criminal case in 1994. Since that time and prior to the instant
motion Petitioner filed two § 2255 petitions, a motion seeking
leave from the Court of Appeals to file a third § 2255 petition
and at least eight civil actions against his trial counsel and
public officials and agencies, all of which were decided against
him. It is evident that Petitioner will continue to advance
theories in support of his effort to set aside his original
conviction and sentence. His most recent allegations must be
viewed in the light of this history of litigation. Viewed in that
light his vague allegation that his counsel in the first § 2255
proceeding suppressed evidence does not constitute an exceptional
circumstance which warrants granting extraordinary relief.
Nor does the alleged court bias warrant extraordinary relief.
This was a contention that could have been raised on the appeal
from the dismissal of the First § 2255 Petition. It was not
raised and the Court of Appeals affirmed the dismissal.
To the extent that the alleged conversation between
Petitioner's friend Mr. Jeff Ozuka, and Ms. Simmons constitutes
new evidence, the motion falls within subsection (2) of Rule
60(b) (not subsection (6)) and is untimely because filed more
than one year after entry of judgment on the First § 2255
IV. The Vienna Convention
Petitioner's second ground for relief is his claim that his
underlying conviction is defective because the government failed
to inform him of his right to consular notification pursuant to
the Vienna Convention. He relies on the decision of the
International Court of Justice in the Case Concerning Avena and
the Other Mexican Nationals (Mexico v. United States of
America), 2004 I.C.J. 128, and a memorandum from the President
of the United States to the U.S. Attorney General dated February 28, 2005, in which President
Bush states that he has "determined, pursuant to the authority
vested in me as President by the Constitution and laws of the
United States of America, that the United States will discharge
its international obligations under the [Avena] decision . . .
by having State Courts give effect to the decision in accordance
with general principles of comity in cases filed by the 51
Mexican nationals addressed in that decision."
Notwithstanding the 2004 Avena decision and the President's
2005 memorandum, the basis for Petitioner's claim, the
requirement of consular notification, has been available since
the date of his arrest. It is not a claim that can be raised in a
Rule 60(b) motion under any of the Rule's subsections. It is not
an attack on the manner in which the January 19, 1995 judgment
was procured. It is a claim that challenges Petitioner's
underlying conviction. Thus it is a claim that must be raised in
a § 2255 petition. Pridgen, supra.
The claim based upon a violation of the Vienna Convention is a
second or successive § 2255 petition over which the court does
not have jurisdiction. If there be any merit to Petitioner's
argument that the procedural default doctrine does not apply in
the present circumstances, he must first present these arguments
to the Court of Appeals in the context of an application for
permission to file a successive petition.*fn1
The court will deny Petitioner's motion to vacate his
conviction and set aside his sentence. It will grant the government's cross-motion to dismiss
the petition. To the extent the motion constitutes a petition
brought pursuant to 28 U.S.C. § 2255 a certificate of
appealability shall not issue.
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