United States District Court, S.D. Indiana, Terre Haute Division
WILLIAM T. LAWRENCE, District Judge.
At the time this action was filed, Thomas Farrugia was confined at the Federal Correctional Complex in Terre Haute, Indiana. He brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The underlying criminal case, No. 1:92-cr-5164, charged Farrugia and four codefendants with violations pertaining to the manufacture of methamphetamine and the possession of ephedrine, a necessary precursor in the manufacture of methamphetamine. Farrugia was convicted by a jury in the Eastern District of California. His conviction and sentence were affirmed on appeal by the Ninth Circuit Court of Appeals. United States v. Farrugia, 1996 WL 403026 (9th Cir. 1996). Farrugia filed a motion to vacate pursuant to 28 U.S.C. § 2255. That motion was docketed as No. CV-F-98-5252 and was denied on October 10, 2000. Both the trial court and the Ninth Circuit declined to issue a certificate of appealability. The Ninth Circuit later denied the petitioner's request for leave to file a second or successive § 2255 motion.
In the Order denying petitioner's Section 2255 motion, the court discussed petitioner's claim that he was denied the effective assistance of counsel because of counsel's failure to analyze the substances seized in connection with the underlying criminal investigation: "Farrugia claims that counsel's investigation and preparation for trial was ineffective because of his failure to obtain sufficient scientific analysis of the suspected meth' seized in the search of the Oakley residence as well as the residue collected from the drainage pit and the glassware at the Lancaster site.... After reviewing Farrugia's motions, the file, and the transcripts the court concludes that counsel's performance was not deficient. Counsel did not fail to investigate and obtain sufficient analysis of the substances involved in the case.... In addition, even if counsel's performance had been found to be deficient, Farrugia cannot show prejudice. As the government correctly points out, assuming the ephedrine was only 50% pure as Farrugia claims, the actual methamphetamine quantity produced would have been 13.25 or 6.2 kilograms (6200 grams). At the time of Farrugia's sentencing, 100 grams of actual methamphetamine triggered a ten-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(A)(viii), and also triggered the enhancement pursuant to 21 U.S.C. § 851. The quantity of methamphetamine that could have been produced using the 50% purity figure Farrugia states is correct would result in the same mandatory life sentence. Thus, Farrugia cannot show prejudice."
Then ensued a torrent of post-judgment motions in the trial court in which the petitioner asserted the same claim as is presented here-all calculated to produce and obtain a chemical analysis of seized chemicals. The trial court has exhaustively considered and rejected those efforts. The following are illustrative of the petitioner's efforts and the trial court's rulings:
In an Order issued on May 9, 2006, the trial court denied Farrugia's motion for an order compelling the Government to perform chemical tests of certain government exhibits (seized chemical samples). The court reviewed the trial evidence at some length, reviewed the claims and conclusions in the § 2255 proceeding, and denied the motion. This ruling was affirmed on appeal in United States v. Farrugia, No. 06-1034 (9th Cir. July 13, 2007)("The district court properly concluded that Farrugia's motions are unrelated to any actions currently pending.").
The trial court's denial of the petitioner's Rule 60(b) motion directed to the disposition of the § 2255 motion contains the following: "As noted in the Order denying petitioner's Section 2255 motion, evidence was presented by petitioner at his jury trial that petitioner's Formula J made a copycat drug that altered ephedrine to look like methamphetamine, that the suspected methamphetamine seized at petitioner's Oakley residence was not methamphetamine but ephedrine processed to look like methamphetamine, that a synthesis using petitioner's Formula J process was performed by petitioner's expert witness, who testified that the resulting process was simply ephedrine in another form and who testified that petitioner's Formula J would not produce methamphetamine. Notwithstanding this evidence and the other evidence described in the Order denying petitioner's Section 2255 motion, the jury did not believe petitioner or petitioner's expert witness."
In an Order issued by the trial court on October 29, 2012, the court explained that the composition of the substances was irrelevant to Plaintiff's claim of actual innocence so long as the evidence indicating that the substance recovered from the Oakley residence did contain ephedrine and that it was in Plaintiff's possession was not refuted.
Reconsideration of the foregoing Order was sought, producing an Order issued on January 8, 2013, in which the trial court wrote: "Plaintiff is not entitled to troll for additional facts merely to contradict non-critical facts alleged by the government or to build up a marginally better case than may have been presented on his behalf at trial.... Plaintiff's argument fails now for the same reason as before; Plaintiff has failed to show how the requested testing of the Substances would materially advance his claim of actual innocence."
The petitioner filed a civil suit to obtain access to the seized substances for test, but the action was dismissed for failure to state a claim upon which relief could be granted. Farrugia v. Lockyear, 2010 WL 583660 (E.D.Calif. Jan. 24, 2011), and Farrugia v. Rooney, 2012 WL 5328642 (E.D.Calif. Oct. 29, 2012). Finally, the petitioner's co-defendant Donald Kapperman (convicted in a separate trial after a mistrial had been declared as to him in the joint trial) filed a motion in the criminal case, No. 1:92-cr-5164, along the same lines. A comprehensive ruling was made:
The matter now before the court is styled as a motion for injunctive and declaratory relief to compel production of trial exhibits for purposes of chemical testing (hereinafter, the "Motion"). As such, Plaintiff's motion represents the most recent in a long line of pleadings by both Plaintiff and co-Defendant Farrugia to obtain samples of certain trial exhibits for "complete chemical analysis." The court notes that both Plaintiff and co-Defendant Farrugia are explicit in their intention to obtain the complete chemical testing of the trial exhibits for the purpose of pursuing later claims of actual innocence....
The purpose of Farrugia's civil case was to secure from the California Bureau of Narcotic Enforcement samples of the three Substances that have been for several years in the custody of the Bureau so that the samples can be "completely chemically analyzed" to determine the presence and amount of binders, adulterants and other chemical characteristics. Prior to the institution of Farrugia's civil action, the docket of the underlying criminal case reflects some fifty or more instances of motions or requests all aimed at the same purposes-the thorough chemical analysis of the Substances to definitively show their differences of composition and, by inference, their different origins. Although both defendants in the criminal case made separate and multiple requests and motions before conviction to accomplish this "complete analysis, " it appears that the vast majority, if not all, of the post-conviction motions, requests or separate actions were undertaken by co-Defendant Farrugia.
Kapperman's, instant motion appears to be in the nature of a "me too" accompaniment to Farrugia's most recent effort as reflected in his Fourth Amended Complaint to his civil case. The court notes parenthetically that Kapperman's motion coincides with the fact that, for the first time since their commitment to the custody of the Bureau of Prisons, both ...