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

**SUMMARY ORDER R** **ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT .**  **C ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,** **IS PERMITTED AND IS GOVERNED BY F** **EDERAL R** **ULE OF A** **PPELLATE P** **ROCEDURE 32.1** **AND THIS COURT ’**  **S L** **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT** **, A PARTY MUST CITE EITHER THE**  **F EDERAL**  **A PPENDIX 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 .**  At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 16 thday of May, two thousand twelve. 4 5 PRESENT: RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, JR., 7 CHRISTOPHER F. DRONEY, 8 Circuit Judges. 9 10 JACK FERRANTI, 11 12 Petitioner-Appellant , 13 14 v. 10-672-pr 15 16 UNITED STATES OF AMERICA 17 18 Respondent-Appellee. 19 20 21 22 23 24 FOR PETITIONER-APPELLANT: INGA L. PARSONS, Marblehead, MA 25 26 FOR RESPONDENT-APPELLEE: TARYN A. MERKL, Assistant United 27 States Attorney (Emily Berger, 28 Assistant United States 29 Attorney, on the brief ), for 30 Loretta E. Lynch, United States 31 Attorney for the Eastern 32 District of New York, Brooklyn, 33 NY 34 35 362 Appeal from the United States District Court for the 1 Eastern District of New York (Korman, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4

**AND DECREED**that the judgment of the United States District 5 Court for the Eastern District of New York is **AFFIRMED**

. 6 Petitioner-Appellant Jack Ferranti ("Ferranti") appeals 7 from the judgment entered in the United States District 8 Court for the Eastern District of New York (Korman, J .), 9 dismissing his successive habeas petition to vacate his 10 conviction under 28 U.S.C. § 2255. Ferranti's petition 11 arises from his conviction for arson homicide in violation 12 of 18 U.S.C. § 844(i), arson conspiracy in violation of 18 13 U.S.C. § 371, related mail fraud counts resulting from 14 insurance fraud in violation of 18 U.S.C. § 1341, and 15 witness tampering in violation of 18 U.S.C. § 1512(b). We 16 assume the parties' familiarity with the facts, procedural 17 history, and issues presented for review. 18 Ferranti contends that the district court erred by 19 concluding that he failed to satisfy his burden for filing a 20 successive habeas petition. We disagree. After the passage 21 of the Antiterrorism and Effective Death Penalty Act 22 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), a 23 claim presented in a successive § 2255 petition based on 243 newly discovered evidence will be dismissed unless the 1 petitioner adduces “newly discovered evidence that, if 2 proven and viewed in light of the evidence as a whole, would 3 be sufficient to establish by clear and convincing evidence 4 that no reasonable factfinder would have found the movant 5 guilty of the offense.” 28 U.S.C. § 2255(h)(1). The 6 AEDPA’s gatekeeping provisions “impose[] stringent limits on 7 a prisoner’s ability to bring a second or successive 8 application for a writ of habeas corpus.” Torres v. 9 Senkowski , 316 F.3d 147, 150 (2d Cir. 2003) (citation and 10 internal quotation marks omitted). 11 The district court mistakenly applied the standard set 12 forth in 28 U.S.C. § 2244(b)(2)(B)(ii), which governs the 13 successive habeas petitions of those imprisoned pursuant to 14 state convictions, and which requires a petitioner to 15 demonstrate that “the facts underlying the [successive] 16 claim, if proven and viewed in light of the evidence as a 17 whole, would be sufficient to establish by clear and 18 convincing evidence that, but for constitutional error , no 19 reasonable factfinder would have found the applicant guilty 20 of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B)(ii) 21 (emphasis added). The district court thus imposed on 22 Ferranti the additional requirement, not applicable to 234 successive petitioners under § 2255, of demonstrating that 1 the exclusion of exculpatory evidence from his trial was the 2 result of constitutional error. 3 However, the district court’s application of an 4 incorrect standard is harmless. Although the district court 5 determined that Ferranti had failed to demonstrate 6 constitutional error, it also dismissed his successive 7 petition on the alternative basis that “considering all of 8 the evidence, Ferranti simply has not established that no 9 reasonable factfinder would have found him . . . guilty of 10 the underlying offense.” It thus unequivocally established 11 that it would have reached the same conclusion had it 12 applied the correct standard. 13 We agree with the district court that the new evidence 14 underlying Ferranti’s successive petition is not sufficient 15 to establish by clear and convincing evidence that no 16 reasonable factfinder, given the benefit of the new 17 evidence, would have found him guilty of the underlying 18 offense. 28 U.S.C. § 2255(h)(1). This standard is more 19 stringent than the pre-AEDPA gateway standard for filing a 20 successive petition, which itself was quite difficult to 21 satisfy and met only in the most “extraordinary case[s].” 22 Schlup v. Delo , 513 U.S. 298, 322 (1995); see also House v. 235 Bell , 547 U.S. 518, 539 (2006). In assessing the petition, 1 we consider both newly-presented evidence and evidence from 2 trial, "without regard to whether it would necessarily be 3 admitted under ‘rules of admissibility that would govern at 4 trial.'" House , 547 U.S. at 538 (quoting Schlup , 513 U.S. 5 at 327-28). 6 Ferranti falls far short of meeting his burden to 7 demonstrate that with the benefit of the newly discovered 8 evidence, no reasonable factfinder would have found him 9 guilty of arson. Almost all of the evidence submitted by 10 Ferranti, at best, serves only to discount the trial 11 testimony of the fire marshals that the fire was set using 12 accelerant. None of this evidence, however, establishes 13 that the fire was accidental. Moreover, even in light of 14 all of the purportedly newly-disclosed and favorable 15 evidence, other incriminating evidence concerning Ferranti's 16 motive, intent, and consciousness of guilt remains 17 uncontradicted and devastating to Ferranti. 18 Ferranti also argues that there was a conspiracy to 19 convict him because a firefighter died in the fire. The 20 district court rejected Ferranti's conspiracy theory, 21 concluding that "Ferranti has not presented any evidence of 22 (and nothing in the record supports) a far-reaching 236 conspiracy by police to frame him." We agree. Ferranti's 1 unsubstantiated allegations of governmental misconduct and 2 suppression of evidence are insufficient to sustain his 3 successive habeas petition. Cf. Heath v. U.S. Parole 4

Comm'n , 788 F.2d 85, 89-90 (2d Cir. 1986). 5 Ferranti also contends that the district court erred in 6 relying on the guilty plea of his co-defendant, Thomas 7 Tocco, because the "objective circumstances of the plea 8 colloquy actually prove the untrustworthiness of the plea.” 9 This claim has no merit. Tocco's plea is strong evidence 10 that the fire was an arson and directly contradicts 11 Ferranti's argument to the contrary. Although Tocco did not 12 name Ferranti as a coconspirator during the plea colloquy, 13 in the context of all the other evidence that connected both 14 Tocco and Ferranti to the fire, Tocco's plea clearly 15 inculpates Ferranti. 16 The district judge also did not err in discounting 17 Tocco's subsequent recantation, made approximately thirteen 18 years after Tocco’s guilty plea to a private investigator 19 hired by Ferranti. The district court reasonably concluded 20 that the "credibility of Tocco's unsworn hearsay statements 21 are undermined by the fact that he is already incarcerated 22 and has nothing to lose by lying, and they are contradicted 237 by his sworn plea colloquy as well as the testimony of the 1 Anthonys and Beverly Danielius at trial, who placed Tocco at 2 the scene on the night of the fire." 3 Next, we reject Ferranti’s claim that the district 4 court should have held “hearings” to consider the videotapes 5 of the fire and the trustworthiness of Tocco’s plea. Under 6 § 2255(b), the district court must provide a hearing on a 7 habeas petition "[u]nless the motion and the files and 8 records of the case conclusively show that the prisoner is 9 entitled to no relief." 28 U.S.C. § 2255(b);see also 10 Raysor v. United States , 647 F.3d 491, 494 (2d Cir. 2011). 11 Although “[o]ur precedent disapproves of summary dismissal 12 of petitions where factual issues exist[], . . . it permits 13 a ‘middle road' of deciding disputed facts on the basis of 14 written submissions." Pham v. United States , 317 F.3d 178, 15 184 (2d Cir. 2003). 16 Here, a hearing was unnecessary because the district 17 court had sufficient information in the record to "decid[e] 18 disputed facts on the basis of written submissions." Id. 19 The parties submitted extensive briefing and numerous 20 exhibits to the district court regarding the contents of the 21 videotapes of the fire. Ferranti does not explain how this 22 information was insufficient to assess the import of the 238 tapes. Furthermore, as to Tocco's plea, the district court 1 had Tocco's sworn plea and the affidavit by Ferranti's 2 private investigator noting that Tocco had recanted. This 3 information was sufficient for the district court to assess 4 Ferranti's arguments concerning the plea. 5 We also reject Ferranti’s claim that "full discovery" 6 was warranted **.**"A habeas petitioner, unlike the usual civil 7 litigant in federal court, is not entitled to discovery as a 8 matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 9 904 (1997). Rather, discovery is allowed only if the 10 district court, acting in its discretion, finds "good cause" 11 to allow it. Id. This "good cause" standard is satisfied 12 "‘where specific allegations before the court show reason to 13 believe that the petitioner may, if the facts are fully 14 developed, be able to demonstrate that he is . . . entitled 15 to relief.'" Id. at 908-09 (quoting Harris v. Nelson , 394 16 U.S. 286, 300 (1969)). The district court enjoys "broad 17 discretion" to determine whether discovery is warranted in a 18 habeas proceeding, and its decision will be overturned only 19 if it abused its discretion. Nieblas v. Smith , 204 F.3d 29, 20 31 (2d Cir. 1999). Here, Ferranti failed to set forth 21 specific allegations that establish the good cause necessary 22 to warrant additional discovery. 239 Finally, Ferranti’s contention that the district court 1 allegedly compelled him "to waive his Fifth Amendment 2 privilege in order to meet the gateway standard" has no 3 merit. In United States v. Male Juvenile , 121 F.3d 34, 42 4 (2d Cir. 1997), we rejected the argument that a district 5 court violated the defendant's Fifth Amendment rights when 6 it stated that the defendant had not testified at a 7 suppression hearing. We reasoned that the district court 8 explicitly stated that it “infer[s] nothing from 9 [defendant’s] failure to testify” and was “simply indicating 10 that, by not testifying, defendant had failed to contradict 11 the government’s evidence with his own testimony.” Id. 12 That is precisely what the district court did here. In 13 assessing the overall nature of the evidence of guilt, the 14 district court noted that "it is not without significance 15 that Jack Ferranti failed to take the witness stand at his 16 own trial, he did not speak at his sentencing, and he failed 17 to file any affidavit in connection with his petition 18 addressing the evidence against him." The district court 19 made clear, however, that it "refer[red] to this not to draw 20 any inference from his failure to affirm his innocence under 21 oath. . . . I refer to it only to evaluate the totality of 22 the evidence necessary to determine whether Ferranti can 2310 meet the AEDPA threshold for filing a successive petition.” 1 Ferranti's contention that the district court "expressly and 2 openly advis[ed]" that it was drawing a negative inference 3 is simply untrue. 4 We have considered all of Ferranti’s remaining 5 arguments and, after a thorough review of the record, find 6 them to be without merit. For the foregoing reasons, the 7 judgment of the district court is hereby **AFFIRMED**

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