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Patel v. United States

United States District Court, W.D. Virginia, Harrisonburg Division

June 3, 2019

ANJAY PATEL, Petitioner,


          Michael F. Urbanski Chief United States District Judge

         This matter is before the court on the motion filed by respondent United States of America to dismiss petitioner Anjay Patel's First Amended Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255. ECF No. 913. For the reasons stated in this memorandum opinion, the government's motion to dismiss will be GRANTED and this case DISMISSED.


         By memorandum opinion and order entered on December 13, 2018, the court granted the United States' motion to dismiss Patel's original § 2255 petition, which asserted two claims.

         First, Patel brought a claim under the Sixth Amendment asserting that the court's 2013 ruling denying release of forfeited substitute assets to pay his retained counsel was undone by the 2016 Supreme Court decision in Luis v. United States. 136 S.Ct. 1083 (2016). As to that claim, the court ruled that "[b]oth because Luis does not have retroactive application on collateral review and because Patel had access to funds to pay his counsel sufficient funds to defend this case, Patel's Sixth Amendment claim must be denied." Memorandum Opinion, ECF No. 899, at 16.

         Patel's second claim alleged a violation of the government's discovery obligations under Brady v. Maryland. 373 U.S. 83 (1963), for failing to disclose a U.S. Department of Justice Office of Inspector General (OIG) investigation resulting in a September 2013 Audit Report entitled Audit of the Bureau of Alcohol, Tobacco, Firearms and Explosives' Use of Income-Generating, Undercover Operations ("2013 OIG Report").[1] The 2013 OIG Report was the subject of an article published in the Washington Post on September 25, 2013.[2] Although the 2013 OIG Report was issued and reported on in the national media in 2013, Patel did not file his Brady violation claim until March 30, 2017, more than three years later. The court found his 2017 petition untimely, finding that "it cannot be said that Patel exercised reasonable diligence to discover his Brady claim based on the 2013 OIG Report." Memorandum Opinion, ECF No. 899, at 18.

         Nonetheless, Patel asserted that since the time he filed his petition, additional claimed improprieties surrounding the use of an ATF management account associated with Big South Wholesale tobacco warehouse in Bristol, Virginia have surfaced. Given that these issues came to light following New York Times reporting in 2017, the court granted Patel "leave to amend his § 2255 petition to allege Brady violations, if any, that transcend the issues raised in the 2013 OIG Report." hi, at 19. By Order dated December 13, 2018, Patel was "granted leave of court to amend his petition within thirty (30) days to claim a Brady violation based on the 2017 revelation of claimed ATF misuse, in connection with its undercover cigarette operations, of a management account at the Big South tobacco warehouse in Bristol, Virginia." Order, ECF No. 900.

         Patel did not comply with the thirty-day time limit in die December 13, 2018 Order, instead filing an amended petition on February 25, 2019. In his amended petition, Patel argues that "the factual predicate for his claim was not discoverable until 2017, rather than 2013 at the time OIG released its report." Amended Petition, ECF No. 907, at 3. Patel bases this argument on four sources of information:

         (A) Testimony of ATF Director Thomas Brandon at a hearing conducted by the Committee on Oversight and Government Report, U.S. House of Representatives, on March 9, 2017 captioned Reviewing ATF's Failures in the Death of ICE Agent Jaime Zapata:[3]

         (B) A New York Times article by Matt Apuzzo dated September 8, 2017 entitled I Smell Cash: How the ATF Spent Millions Unchecked;

         (C) A deposition of former ATF Special Agent Thomas P. Lesnak in a civil fraud case pending in North Carolina;[4] and

         (D) A September 14, 2017 U.S. Department of Justice Office of Inspector General Investigative Summary entitled Findings Concerning Misconduct by an Alcohol, Tobacco, Firearms, and Explosives (ATF) Resident Agent in Charge for Multiple Failures in the Management of an Operation, and by an Assistant U.S. Attorney for Having an Inappropriate Relationship With an ATF Agent and Violating Professional Responsibilities ("2017 OIG Investigative Summary").[5]

         The court has examined Patel's amended petition and each of the bases upon which he asserts that the facts underlying his Brady claim were not discoverable until 2017. While the first three sources of information cited by Patel, Le Director Brandon's testimony, the 2017 New York Times reporting, and the Lesnak deposition, refer to ATF misdeeds in tobacco undercover operations, none of these supports Patel's claim that his petition was timely filed. In sum,, these sources of information contain no new revelations of wrongdoing material to Patel's prosecution requiring Brady disclosures beyond those associated with the 2013 OIG Report. The only thing tying Patel's fourth source, the 2017 OIG Investigative Summary, to this case ...

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