United States District Court, D. Minnesota
Patrick J. Schiltz United States District Judge
Michael Fiorito was convicted by a jury of mail fraud and
conspiracy to commit mail fraud. The Court sentenced him to
270 months' imprisonment, and his conviction and sentence
were affirmed on direct appeal. United States v.
Fiorito, 640 F.3d 338 (8th Cir. 2011).
then sought relief under 28 U.S.C. § 2255. ECF No. 503.
The Court denied that motion, but granted Fiorito a
certificate of appealability as to one issue. ECF No. 588.
Fiorito sought reconsideration and expansion of the
certificate of appealability, which the Court denied. ECF
Nos. 591, 592. The United States Court of Appeals for the
Eighth Circuit affirmed the denial of § 2255 relief.
Fiorito v. United States, 821 F.3d 999 (8th Cir.
next filed a motion to amend or supplement his original
§ 2255 motion-that is, the motion whose denial the
Eighth Circuit had already affirmed. ECF No. 600. The Court
denied Fiorito's motion to amend, in part because it was
a transparent attempt to bring a second or successive §
2255 motion, and he had not received the necessary
authorization from the Eighth Circuit. ECF No. 606. The
Eighth Circuit denied Fiorito's application for a
certificate of appealability and dismissed his appeal. ECF
No. 619. In the meantime, Fiorito sought permission from the
Eighth Circuit to file a second or successive § 2255
motion, which the Eighth Circuit also denied. ECF Nos. 604,
Fiorito began filing a series of documents relating to an
attempt to bring two more § 2255 motions. In March 2018,
the Court received a letter and accompanying motion from
Fiorito referring to a new § 2255 motion that he had
purportedly sent to the Court that, according to Fiorito, was
based on Buck v. Davis, 137 S.Ct. 759 (2017). ECF
No. 627. The letter explained that Fiorito anticipated that
the new § 2255 motion would be assigned to the
undersigned and asked that, in that event, the Clerk's
Office docket the accompanying motion, which requested that
the Court hold the § 2255 motion in abeyance pending
Fiorito's preparation of a motion for the undersigned to
recuse. Fiorito requested 45 days to submit a recusal motion.
ECF No. 627 at 9.
Clerk's Office returned Fiorito's letter and
accompanying motion to him, explaining that it had not
received the § 2255 motion to which these documents
referred. ECF Nos. 628, 629. In response, Fiorito sent a copy
of his new § 2255 motion invoking Buck v. Davis
along with a cover letter again requesting that his §
2255 motion be held in abeyance until he could submit a
recusal motion. ECF No. 630. The Court therefore let the
matter remain pending in anticipation of the recusal motion.
has yet to submit a recusal motion. But a little over two
weeks ago, the Court received a set of documents from Fiorito
that included (1) exhibits to his Buck v. Davis
§ 2255 motion and (2) a letter to Clerk's Office
staff asking for the file numbers for his Buck v.
Davis § 2255 motion and for yet another § 2255
motion based on Nelson v. Colorado, 137 S.Ct. 1249
(2017). ECF Nos. 632, 633. About a week later, the Court
received a motion from Fiorito again requesting the file
numbers for the two new § 2255 motions and inquiring
about their status. ECF No. 634.
there are now two motions pending before the Court: (1)
Fiorito's § 2255 motion under Buck v.
Davis; and (2) Fiorito's motion requesting a status
update and the file numbers for his Buck v. Davis
§ 2255 motion and yet another § 2255 motion that
Fiorito purportedly filed invoking Nelson v.
Colorado. The Court addresses each of these motions in
Buck v. Davis § 2255 Motion
noted, Fiorito requested that the Court hold his Buck v.
Davis § 2255 motion in abeyance for 45 days so that
he could submit a motion asking the undersigned to recuse.
The Court therefore stayed its hand in anticipation of a
recusal motion. More than 45 days have passed and no recusal
motion has been filed, despite the fact that Fiorito has been
able to file several other documents and apparently prepared
yet another § 2255 motion. Moreover, in December 2016
the Court denied Fiorito's earlier motion for recusal
because it was extremely untimely and because it was
frivolous. ECF No. 618. Nothing has changed in the interim,
and the Court continues to be unaware of any grounds for
recusal. The Court will therefore address Fiorito's
Buck v. Davis § 2255 motion.
has already litigated and lost a motion under 28 U.S.C.
§ 2255. He is therefore barred from bringing another one
unless he obtains permission from the United States Court of
Appeals for the Eighth Circuit. 28 U.S.C. § 2255(h); 28
U.S.C. § 2244(b)(3)(A). It does not matter that Fiorito
purports to base his motion on a new Supreme Court case; he
must still obtain the required authorization. Cf. Donnell
v. United States, 826 F.3d 1014 (2016) (denying
authorization to bring a second or successive § 2255
motion purportedly premised on Johnson v. United
States, 135 S.Ct. 2551 (2015)).
faced with a second or successive § 2255 motion for
which the defendant has not obtained the necessary
authorization, a district court has discretion to transfer
the motion to the appropriate court of appeals. Cf. Boyd
v. United States, 304 F.3d 813 (8th Cir. 2002) (per
curiam). The Court will not do so in this case, however,
because Fiorito's motion appears meritless. Among other
problems, Fiorito's motion is extremely unlikely to meet
the standard of § 2255(h)(2), which requires the
successive motion to be based on a new, previously
unavailable rule of constitutional law made retroactive to
cases on collateral review by the Supreme Court. The Court
therefore denies Fiorito's Buck v. Davis §
2255 motion without prejudice. If Fiorito obtains appropriate
authorization from the Eighth Circuit, he may refile the
Motion for Status Update and File Numbers
motion for a status update and file numbers is granted. By
this order, the Court is notifying Fiorito of the status of
his Buck v. Davis § 2255 motion: It is denied
without prejudice. With respect to Fiorito's other
purported § 2255 motion based on Colorado v.
Nelson: The Court has never received any such motion and
therefore no such motion is pending before the Court. Fiorito
is warned again-as he has already been warned on multiple
occasions-that he cannot file a new § 2255 motion
without the prior authorization of the ...