16-2118-cr
Russo 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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 7th day of June, two thousand seventeen.

PRESENT:            JOSÉ A. CABRANES,
                    GERARD E. LYNCH,
                                 Circuit Judges,
                    PAUL G. GARDEPHE,*
                                 District Judge.


ANTHONY RUSSO,

                           Petitioner-Appellant,                    16-2118-cr

                           v.

UNITED STATES OF AMERICA,

                           Respondent-Appellee.


FOR PETITIONER-APPELLANT:                               ELLEN B. RESNICK (Alan S. Futerfas, on
                                                        the brief), Law Offices of Alan S. Futerfas,
                                                        New York, NY.




     *
    Judge Paul G. Gardephe, of the United States District Court for the Southern District of New
York, sitting by designation.

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FOR RESPONDENT-APPELLEE:                                     ELIZABETH GEDDES (Amy Busa, on the
                                                             brief), Assistant United States Attorneys,
                                                             for Robert L. Capers, United States
                                                             Attorney for the Eastern District of New
                                                             York, Brooklyn, NY.

       Appeal from an order of the United States District Court for the Eastern District of New
York (Brian Cogan, Judge).

         UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED, and, construing petitioner’s papers as a new or renewed motion for authorization to
file a successive motion for relief under 28 U.S.C. § 2255, the motion is DENIED.

         Despite having his motion for authorization to file a second or successive motion in a
district court for habeas corpus relief pursuant to 28 U.S.C. §§ 2244 and 2255(h) denied by this
Court in 2013, petitioner-appellant Anthony Russo filed precisely such a motion in the District
Court on January 6, 2015. In light of 28 U.S.C. §§ 2244 and 2255(h) and Russo’s lack of
authorization from this Court to file such a motion—indeed, this Court’s express denial of such
authorization in 2013—the District Court denied the motion. This appeal followed. We assume the
parties’ general familiarity with the underlying facts, the procedural history of the case, and the issues
on appeal.

        Russo requests that we construe his appeal as a motion for authorization to file a second or
successive § 2255 motion. Doing so, we conclude that granting Russo such authorization is
unwarranted. As an initial matter, the Government contends that our 2013 order denying such
authorization also resolves this appeal because the putative “newly discovered evidence” upon which
Russo’s claim of actual innocence relies was already presented, in substantial and material part, in
Russo’s 2013 application. That argument is not without some force, but we need not rely on it in
disposing of Russo’s current application.

         Assuming that our 2013 order does not of itself resolve the current application, and
assuming further that Russo’s cited evidence constitutes “newly discovered evidence” within the
meaning of § 2255(h)(1), we conclude that Russo has not demonstrated that, if proven and viewed in
light of the evidence as a whole, it would be sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found him guilty of the underlying offenses. For the same
reason, Russo has not stated a valid freestanding innocence claim, as he has failed to satisfy even the
most lenient actual innocence standard, which requires a movant to demonstrate that, “in light of
new evidence, ‘it is more likely than not that no reasonable juror would have found [him] guilty
beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536-37 (2006) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)); see also id. at 555 (stating that, even assuming that a petitioner may assert a
freestanding actual innocence claim, he must make an “extraordinarily high” threshold showing, and

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“at the least” offer “more convincing proof of innocence than [under] Schlup” (quoting Herrera v.
Collins, 506 U.S. 390, 417 (1993))). Accordingly, we identify no error in the District Court’s dismissal
of Russo’s petition.

                                           CONCLUSION

         We have reviewed all of the arguments raised by Russo on appeal and find them to be
without merit. Accordingly, the order of the District Court is AFFIRMED, and, construing
petitioner’s papers as a new or renewed motion for authorization to file a successive motion for
relief under 28 U.S.C. § 2255, the motion is DENIED.


                                                        FOR THE COURT:
                                                        Catherine O’Hagan Wolfe, Clerk




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