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11-3570-cr United States v. LoCascio 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 4 New York, on the 16th day of November, two thousand twelve. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOHN M. WALKER, Jr., 9 Circuit Judge, 10 SANDRA DAY O’CONNOR, 11 Associate Justice (Retired).* 12 13 - - - - - - - - - - - - - - - - - - - -X 14 UNITED STATES OF AMERICA, 15 Appellee, 16 17 -v.- 11-3570-cr 18 JOHN GOTTI, SALVATORE GRAVANO, GUISEPPE 19 GAMBINO, AKA JOE, AKA JOEY, PHILIP 20 LOSCALZO, AKA SKINNY PHIL, 21 Defendants, 22 FRANK LOCASCIO, 23 Defendant-Appellant. 24 - - - - - - - - - - - - - - - - - - - -X * The Honorable Sandra Day O’Connor, Associate Justice (Retired) of the United States Supreme Court, sitting by designation. 1 1 FOR APPELLANT: Ruth M. Liebesman, Teaneck, New 2 Jersey. 3 4 FOR APPELLEE: Peter A. Norling, Taryn A. 5 Merkl, for Loretta E. Lynch, 6 United States Attorney’s Office 7 for the Eastern District of New 8 York, Brooklyn, New York. 9 10 Appeal from an order of the United States District 11 Court for the Eastern District of New York (Glasser, J.). 12 13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 14 AND DECREED that the judgment of the district court be 15 AFFIRMED. 16 17 Frank LoCascio appeals from an order entered on August 18 24, 2011, in the United States District Court for the 19 Eastern District of New York (Glasser, J.) denying his 20 motion to unseal certain wiretap recordings and portions of 21 his trial transcript. We assume the parties’ familiarity 22 with the underlying facts, the procedural history, and the 23 issues presented for review. 24 25 LoCascio, a former underboss of the Gambino Crime 26 Family, is serving a life sentence after his 1992 conviction 27 (with co-defendant John Gotti) on charges of racketeering, 28 murder, and related offenses. The present motion is the 29 latest in a series of LoCascio’s challenges to conviction. 30 Here, he requests that the government release wiretap 31 recordings played during his trial for further testing by a 32 defense expert, analogizing recent advances in audio 33 technology to advances in DNA testing. He also seeks 34 certain portions of his trial transcript that were filed 35 under seal. 36 37 LoCascio contends that he has a due process right to 38 the audio recordings played during his trial, but he fails 39 to cite any authority in support of this proposition. Even 40 if his somewhat tenuous analogy to DNA evidence is 41 warranted, the Supreme Court has declined to recognize “a 2 1 freestanding right to access DNA evidence for testing.”1 2 District Attorney’s Office for Third Judicial Dist. v. 3 Osborne,
557 U.S. 52, 72 (2009). 4 5 LoCascio’s motion is also procedurally barred. He 6 already filed a § 2255 petition, which was denied. LoCascio 7 v. United States,
473 F.3d 493(2d Cir. 2007). If LoCascio 8 were to file a “second or successive petition” under § 2255, 9 it would be dismissed unless it asserted either “(1) newly 10 discovered evidence that, if proven and viewed in light of 11 the evidence as a whole, would be sufficient to establish by 12 clear and convincing evidence that no reasonable factfinder 13 would have found the movant guilty of the offense;” or “(2) 14 a new rule of constitutional law, made retroactive to cases 15 on collateral review by the Supreme Court, that was 16 previously unavailable.”
28 U.S.C. § 2255(h). Even if he 17 were granted the discovery he now seeks, LoCascio could 18 establish neither.2 19 20 Finding no merit in LoCascio’s remaining arguments, we 21 hereby AFFIRM the judgment of the district court. 22 23 24 FOR THE COURT: 25 CATHERINE O’HAGAN WOLFE, CLERK 26 1 LoCascio does not expressly assert a procedural due process claim, but assuming one is encompassed within his appeal, he has failed to establish that the post-conviction relief procedures afforded to him are “fundamentally inadequate to vindicate the substantive rights provided.” Osborne,
557 U.S. at 69. 2 LoCascio improperly filed this motion with the district court rather than first seeking certification from this Court, as required by § 2255. See
28 U.S.C. § 2255(h). 3
Document Info
Docket Number: 11-3570-cr
Citation Numbers: 488 F. App'x 514
Judges: Day, Dennis, Jacobs, John, O'Connor, Sandra, Walker
Filed Date: 11/16/2012
Precedential Status: Non-Precedential
Modified Date: 8/5/2023