UNITED STATES of America, Appellee, v. John GOTTI, Salvatore Gravano, Guiseppe Gambino, aka Joe, aka Joey, Philip Loscalzo, aka Skinny Phil, Defendants, Frank LoCascio, Defendant-Appellant, 488 F. App'x 514

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Frank LoCascio appeals from an order entered on August 24, 2011, in the United States District Court for the Eastern District of New York (Glasser, J.) denying his motion to unseal certain wiretap recordings and portions of his trial transcript. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

LoCascio, a former underboss of the Gambino Crime Family, is serving a life sentence after his 1992 conviction (with co-defendant John Gotti) on charges of racketeering, murder, and related offenses. The present motion is the latest in a series of LoCascio’s challenges to conviction. Here, he requests that the government release wiretap recordings played during his trial for further testing by a defense expert, analogizing recent advances in audio technology to advances in DNA testing. He also seeks certain portions of his trial transcript that were filed under seal.

LoCascio contends that he has a due process right to the audio recordings played during his trial, but he fails to cite any authority in support of this proposition. Even if his somewhat tenuous analogy to DNA evidence is warranted, the Supreme Court has declined to recognize “a freestanding right to access DNA evidence for testing.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 72, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). LoCascio’s motion is also procedurally barred. He already filed a § 2255 petition, which was denied. LoCascio v. United States, 473 F.3d 493 (2d Cir.2007).

If LoCascio were to file a “second or successive petition” under § 2255, it would be dismissed unless it asserted either “(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense;” or “(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). Even if he were granted the discovery he now seeks, LoCascio could establish neither.

Finding no merit in LoCascio’s remaining arguments, we hereby AFFIRM the judgment of the district court. . 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, 129 S.Ct. 2308.