United States v. Bastien

• Decision Date: 29 June 2015
• Docket Number: 09–CR–757,14–CV–355 (JFB).,Nos. 09–CR–205,s. 09–CR–205
• Citation: 111 F.Supp.3d 315
• Parties: UNITED STATES of America, v. Gary BASTIEN, Defendant.
• Court: U.S. District Court — Eastern District of New York

111 F.Supp.3d 315

UNITED STATES of America,

v.Gary BASTIEN, Defendant.

Nos. 09–CR–205

09–CR–757

14–CV–355 (JFB).

United States District Court, E.D. New York.

Signed June 29, 2015.

Kelly T. Currie, Acting United States Attorney, by Richard Thomas Lunger, Jr. and Charles N. Rose, Assistant United States Attorneys, Central Islip, NY, for United States.

Gary Bastien, pro se.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On November 6, 2009, defendant Gary Bastien ("Bastien" or "defendant") pleaded guilty to one count of bank fraud in violation of 18 U.S.C. § 1344 (No. 09–CR–205), and multiple counts of wire and mail fraud in violation of 18 U.S.C. §§ 1341, 1343 (No. 09–CR–757). On July 30, 2010, the undersigned sentenced Bastien to 57 months of imprisonment for the bank fraud charged under 09–CR–205, to run concurrently to 57 months of imprisonment for the wire and mail fraud charged under 09–CR–757. The undersigned also sentenced Bastien to a three-year term of supervised release in each action, to run concurrent to each other. Additionally, the undersigned recommended that Bastien participate in a mental health treatment program. The Court entered a judgment of conviction on August 5, 2010. Bastien, proceeding pro se, then moved for relief pursuant to Rules 60(b) and 60(d) of the Federal Rules of Civil Procedure, which was denied in a Memorandum and Order dated April 19, 2013 (the " Rule 60 Order"). United States v. Bastien, Nos. 09–CR–205, 09–CR–757 (JFB), 2013 WL 1701601 (E.D.N.Y. Apr. 19, 2013), aff'd, 565 Fed.Appx. 24 (2d Cir.2014). Bastien now moves for collateral relief through a writ of audita querela (the "Audita Querela Motion "), and, having completed his prison term, for early termination of supervised release (the "Supervised Release Motion"). For the following reasons, the Court denies the motions in their entirety.

I. BACKGROUND

The Court assumes the parties' familiarity with the underlying facts. As relevant here, Bastien completed his prison term on April 1, 2013, and currently is on supervised release. He did not directly appeal his conviction or sentence, or seek habeas relief pursuant to 28 U.S.C. § 2255.

Bastien filed the Audita Querela Motion on January 10, 2014. On February 6, 2014, the Court ordered the government to respond, but the Court erroneously styled the order as if the petition was brought pursuant to 28 U.S.C. § 2255.¹ On March 31, 2014, Bastien filed an ex parte motion for early termination of supervised release. The Court ordered the government to respond to this motion, as well. Following delays in briefing while the parties awaited the Second Circuit's ruling on Bastien's appeal of the Court's Rule 60 Order, the government filed its opposition on July 17, 2014. Bastien responded on July 23, 2014. Bastien also supplemented his motion with submissions filed on December 9, 2014, and December 11, 2014, including a motion under § 2255. The matter is fully submitted.

II. WRIT OF AUDITA QUERELA

A. Legal Standard

Pursuant to 28 U.S.C. § 1651(a), the "Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law," including a writ of audita querela. Although formally abolished in civil cases, see Fed.R.Civ.P. 60(e), the writ of audita querela "remain[s] available in very limited circumstances with respect to criminal convictions," United States v. LaPlante, 57 F.3d 252, 253 (2d Cir.1995). 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." Id. The writ may also be used to challenge "a judgment that was correct at the time it was rendered but which is rendered infirm by matters which arise after its rendition." United States v. Quintieri, No. 00–CR–351 (TCP), 2013 WL 249648, at *2 (E.D.N.Y. Jan. 22, 2013) (citation and internal quotation marks omitted).

Finally, the writ " ‘might be deemed available if [its] existence were necessary to avoid serious questions as to the constitutional validity of both § 2255 and § 2244 —if, for example, an actually innocent prisoner were barred from making a previously unavailable claim under § 2241 as well as § 2255.’ " United States v. Sperling, 367 Fed.Appx. 213, 214 (2d Cir.2010) (quoting Triestman v. United States, 124 F.3d 361, 380 n. 24 (2d Cir.1997) ).

B. Discussion

Bastien asserts four bases for the issuance of a writ of audita querela: (1) the Court erred by not ordering a competency hearing before sentencing; (2) Bastien was not offered any mental health treatment while he was incarcerated; (3) he was forced to work excessive and exhausting hours while incarcerated; and (4) he received ineffective assistance of counsel. Bastien claims that these errors violated his Fifth, Eighth, and Fourteenth Amendment rights. As set forth below, the Court denies the petition because it is procedurally barred and, regardless, none of the claims have merit.

1. Procedural Bars

First, pursuant to the terms of his written plea agreement on November 6, 2009, Bastien is barred from collaterally attacking his conviction or sentence through a writ of audita querela. It is well settled that "a defendant's knowing and voluntary waiver of his right to appeal a sentence within an agreed upon guideline range is enforceable." United States v. Moore, 306 Fed.Appx. 628, 629 (2d Cir.2009) (citations omitted). Such a waiver applies both to petitions for habeas relief pursuant to 28 U.S.C. § 2255, see, e.g., Lisnoff v. United States, No. 05–CV–1209 (NGG), 2006 WL 1367413, at *2–3 (E.D.N.Y. May 18, 2006), and to petitions for a writ of audita querela, see, e.g., Mata–Soto v. United States, 558 Fed.Appx. 844, 848 & n. 3 (10th Cir.2014) ("[T]he fact that [the defendant] initiated [claims falling within the scope of a knowing and voluntary appellate waiver] by the filing of a petition seeking a writ of audita querela or coram nobis does not relieve him from the effect of his appellate waiver." ); United States v. Tyler, No. 04 CR 1060, 2009 WL 1953199, at *1 (E.D.N.Y. July 7, 2009) (concluding that petition for writs of audita querela or coram nobis was procedurally barred based on court's imposition of term of imprisonment that fell within valid waiver provision of plea agreement). Here, Bastien "agree[d] not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the [district court] impose[d] a term of imprisonment of 57 months or below." (Gov't Opp'n, at 3 (citing Brief for Respondent at 4–7, United States v. Bastien, No. 13–1728(L) (2d Cir. Jan. 13, 2014)).) During the plea hearing, the Court reviewed the waiver provision with Bastien and his counsel, and Bastien stated that he understood the waiver and that he was waiving his rights knowingly and voluntarily. (See Plea Tr.,² at 5–9, 18, 30–32.) On July 30, 2010, the Court imposed a term of imprisonment of 57 months, within the scope of the appellate waiver. The Court has reviewed the plea proceeding and concludes that its finding as to the voluntariness of the plea and waiver was correct. Bastien did not raise any issues regarding his mental competency during the hearing, and he has submitted no evidence from which the Court could now conclude that the plea was not knowing and voluntary. See Dennis v. Turner, 729 F.Supp. 15, 16 (S.D.N.Y.1990) ("[N]o hearing on competency is required if a court has not been given reasonable cause to believe that a defendant has competency problems."). The instant motion, in fact, primarily focuses on Bastien's competency after the plea hearing and before sentencing.

Second, the Court concludes that the writ of audita querela is unavailable because judicial remedies did exist for Bastien to challenge the conviction and sentence, such as a petition brought pursuant to 28 U.S.C. § 2255. See, e.g., Pipola v. United States, 430 Fed.Appx. 31, 32 (2d Cir.2011) ("Here, the writ of audita querela is not an available remedy, because, as a federal prisoner challenging the legality of his conviction, the relief Pipola seeks is covered by statute: 28 U.S.C. § 2255(a). This conclusion is not undermined by the fact that any Section 2255 motion filed by Pipola must satisfy the threshold requirements applicable to successive Section 2255 motions....") (citations omitted); Brown v. United States, No. 11 CV 3580(RJD), 2011 WL 4543060, at *1 (E.D.N.Y. Sept. 23, 2011) ("The writ of audita querela ... [was] improperly invoked in this case. Because petitioner is challenging the validity of a federal conviction, the proper vehicle is the federal habeas statute, 28 U.S.C. § 2255."). Bastien failed to seek § 2255 relief within the one year statute of limitations provided by 28 U.S.C. § 2255(f)(1). He also has not argued that § 2255 is an inadequate or ineffective remedy. In fact, " § 2255 is not inadequate or ineffective merely because it is barred by the statute of limitations" or because a defendant knowingly and voluntarily waived her § 2255 rights. Mata–Soto, 558 F. App'x at 848 n. 3 (citing Sines v. Wilner, 609 F.3d 1070, 1073–74 (10th Cir.2010) ); see also United States v. Valdez–Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001) ("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."); Cummings v. United States,

Nos. 13cv8552 (JGK), 08cr1343 (JGK), 2014 WL 3388559, at *2 (S.D.N.Y. July 11, 2014) ("[I]f the defendant waived the right to post-conviction relief such as a direct appeal or a § 2255 motion, the defendant cannot later petition for a writ of audita querela on the basis that these post-conviction remedies are not available because of...