Pizarro v. United States of America

Background

The court had previously denied Robert Pizarro’s petition under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence. Pizarro then filed a motion under Federal Rule of Civil Procedure 59(e), which permits a party to ask the court to alter or amend a judgment.

Court’s analysis

The court held that Pizarro’s motion could be denied because he raised arguments that could have been made at any time since trial and gave no explanation for omitting them from his § 2255 motion. The court stated that a Rule 59(e) motion cannot be used to relitigate old matters or present arguments or evidence that could have been raised before judgment.

The court also addressed the substance of Pizarro’s arguments. Pizarro argued that the jury instruction on kidnapping was defective because the government should have been required to prove that he kidnapped Bishun for a reward or financial gain. The court said that argument had been rejected by the Second Circuit and the Supreme Court and therefore could not support a claim that his lawyer provided ineffective assistance.

Pizarro also argued that the S4 indictment was improperly changed because the grand jury had not agreed to charge him under the cited kidnapping and witness-murder statutes. The court found that counts two and three of the S4 indictment charged exactly those offenses.

Finally, Pizarro argued that his lawyer violated his constitutional right to decide that the defense would assert his innocence by failing to object to the jury instruction and indictment. The court rejected that argument, reasoning that the lawyer did not concede Pizarro’s guilt by declining to make arguments the court considered meritless.

Disposition

Judge Arun Subramanian denied Pizarro’s Rule 59(e) motion. The court certified under 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and denied permission to appeal without paying filing fees. The clerk was directed to terminate the two identified motions and send the parties appeal instructions.