10-672-pr

Ferranti v. United States 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,

2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

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

New York, on the 16th 4 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
2

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
3

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, 316 F.3d 147, 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
4

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, 513 U.S. 298, 322 (1995); see also House v.
5

1 Bell, 547 U.S. 518, 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.'" House, 547 U.S. at 538 (quoting Schlup, 513 U.S.

6 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
6

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, 788 F.2d 85, 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
7

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, 647 F.3d 491, 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, 317 F.3d 178,

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." Id.

20 The parties 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
8

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, 520 U.S. 899,

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

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

12 to allow it. Id. This "good cause" 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.'" Id. at 908-09 (quoting Harris v. Nelson, 394

17 U.S. 286, 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, 204 F.3d 29,

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.
9

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, 121 F.3d 34, 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.” Id.

13 That is 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
10

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

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