Legrano v. United States ( 2013 )

11-3936
Legrano v. United States
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
26th day of February, two thousand thirteen.
Present:
JOHN M. WALKER, JR.,
ROBERT A. KATZMANN,
Circuit Judges,
LORETTA A. PRESKA,*
District Judge.
__________________________________________
JOSEPH LEGRANO,
Petitioner-Appellant,
v. No. 11-3936
UNITED STATES OF AMERICA,
Respondent-Appellee.
__________________________________________
For Appellant: Joseph Legrano, pro se, Ayer, MA.
For Appellee: David C. James and Darren LaVerne, Assistant United States
*
Chief Judge Loretta A. Preska, of the United States District Court for the Southern
District of New York, sitting by designation.
Attorneys, for Loretta E. Lynch, United States Attorney, Eastern
District of New York, Brooklyn, NY.
Appeal from orders of the United States District Court for the Eastern District of New
York (Ross, A.).
UPON DUE CONSIDERATION it is hereby ORDERED, ADJUDGED, and
DECREED that the orders of the district court are AFFIRMED.
Appellant Joseph Legrano, incarcerated and proceeding pro se, appeals from the district
court’s orders denying his petition for a writ of audita querela or coram nobis under the All
Writs Act, 28 U.S.C. § 1651(a), and his motion for reconsideration of that denial. We assume
the parties’ familiarity with the underlying facts, the procedural history of the case, and the
issues on appeal.
We review de novo a district court’s denial of a writ of audita querela. United States v.
Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). Additionally, we review the denial of a
writ of error coram nobis for abuse of discretion, but conduct a de novo review with respect to
whether the district court applied the proper legal standard. United States v. Mandanici, 205
F.3d 519, 524 (2d Cir. 2000). “The All Writs Act is a residual source of authority to issue writs
that are not otherwise covered by statute.” Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S.
34, 43 (1985). Thus, “[w]here a statute specifically addresses the particular issue at hand, it is
that authority, and not the All Writs Act, that is controlling.” Id. A writ of audita querela “is
probably available where there is a legal, as contrasted with an equitable, objection to a
conviction that has arisen subsequent to the conviction and that is not redressable pursuant to
another post-conviction remedy.” Richter, 510 F.3d at 104 (internal quotation marks omitted).
Coram nobis may be used to seek review of a criminal conviction where a motion under section
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2255 is unavailable because the petitioner is no longer in custody. See Fleming v. United States,
146 F.3d 88, 89-90 (2d Cir. 1998) (per curiam). Coram nobis is not a substitute for appeal and
relief is strictly limited to those cases in which fundamental errors have rendered the prior
proceeding invalid. See Foont v. United States, 93 F.3d 76, 78 (2d Cir. 1996).
Here, the writs of audita querela and coram nobis are not remedies available to Legrano
because, as a federal prisoner challenging the legality of his conviction, the relief he seeks is
covered by statute; to wit, 28 U.S.C. § 2255. See 28 U.S.C. § 2255(a); see also Cephas v. Nash,
328 F.3d 98, 103 (2d Cir. 2003) (“[F]ederal prisoners challenging the legality of their
convictions or sentences must proceed by way of motion pursuant to 28 U.S.C. § 2255.”). This
conclusion is not undermined by the fact that any future section 2255 motion filed by Legrano
must satisfy the threshold requirements applicable to second or successive section 2255 motions,
as his first section 2255 motion was denied on the merits. See Jiminian v. Nash, 245 F.3d 144,
148 (2d Cir. 2001) (“Because [a petitioner] could have raised [a particular] claim in his prior §
2255 motion, the mere fact that he is now unable to meet the AEDPA’s gate-keeping
requirements does not render § 2255 an inadequate or ineffective vehicle for presentation of that
claim.”); United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (per curiam) (“A
prisoner may not circumvent valid congressional limitations on collateral attacks by asserting
that those very limitations create a gap in the postconviction remedies that must be filled by the
common law writs.”); Persico v. United States, 418 F. App’x 24, 25-26 (2d Cir. 2011) (summary
order) (“Courts have determined that audita querela is not available even in those cases where a
petitioner is precluded from raising his or her claims in a successive § 2255 motion because a
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previous § 2255 motion was denied on the merits.”). Thus, Legrano must present his claims in
motion for leave to file a successive § 2255 motion.1
Finally, we review a district court’s denial of a motion for reconsideration for abuse of
discretion. See RJE Corp. v. Northville Indus. Corp., 329 F.3d 310, 316 (2d Cir. 2003) (per
curiam). For the reasons discussed above, the district court did not abuse its discretion in
denying Legrano’s motion for reconsideration. We have considered all of Legrano’s remaining
arguments and find them to be without merit. Accordingly, the orders of the district court are
hereby AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
1
We note, however, that were we to construe Legrano’s current petition as such a
motion, we would deny relief on the ground that the claims raised in his petition do not rely on
any “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable” or any newly discovered evidence within the meaning of
§ 2255(h). See 28 U.S.C. § 2255(h) (providing that a successive § 2255 motion must rely on
newly discovered evidence that would be sufficient to establish the movant’s innocence or a new
rule of constitutional law made retroactive to cases on collateral review by the Supreme Court).
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