United States v. Quintieri

• Decision Date: 22 January 2013
• Docket Number: 00-CR-351 (TCP)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ERNESTO QUINTIERI, Defendant.
• Court: U.S. District Court — Eastern District of New York

UNITED STATES OF AMERICA, Plaintiff,
v.
ERNESTO QUINTIERI, Defendant.

00-CR-351 (TCP)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: January 22, 2013

MEMORANDUM AND ORDER

PLATT, District Judge.

Before the Court is defendant Ernesto Quintieri's motion for a writ of audita querela pursuant to 28 U.S.C. § 1651(a), the All Writs Act. Defendant requests that his sentence be vacated and that he be resentenced on the ground that his attorney rendered ineffective assistance of counsel.¹ For the following reasons, defendant's motion is hereby DENIED.

Background

On June 30, 2000, defendant pled guilty to a single count information which charged him with knowingly possessing a counterfeit check drawn on the account of Photocircuits Corporation at First Union Bank, with intent to deceive another person and organization, in violation of 18 U.S.C. § 513(a).² The conviction arose from defendant's attempt to cash a stolen and forged check in the amount of $392,568.92.

On October 6, 2000, defendant was sentenced. His presentence investigation report found an adjusted offense level of 13, with a Guidelines range of 12 to 18 months, which the parties

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agreed was the proper calculation.

Prior to sentencing and by letter dated September 21, 2000, defendant's then-attorney, Joel Weiss, filed a motion for a downward departure based on defendant's "extraordinary family responsibilities." In the alternative, Mr. Weiss requested "a sentence at the bottom of the applicable range of a year and a day."

By letter dated September 25, 2000, the government opposed defendant's motion for a downward departure. It noted that defendant's family circumstances were not extraordinary because many families with incarcerated members also suffer economic hardship. The government also noted that the instant offense was defendant's second federal felony conviction because defendant had pled guilty to conspiracy to commit carjacking in the Eastern District of New York approximately four years earlier in May 1996.

During his client's sentencing on October 6, 2000, Mr. Weiss again asked the Court to "consider a sentence at the bottom of the applicable range. That would be a sentence of a year and a day." Adinolfi Dec., Exh. C 7:4-6. Defendant was sentenced to a custodial sentence of one year and one day, three years of supervised release and restitution in the sum of $6,600 for the counterfeit check count.

While he was incarcerated, defendant learned that because he had been sentenced to one year and one day, he would be automatically removed or deported from the United States for having committed an aggravated felony.

By Notice to Appear dated November 15, 2000, the Immigration and Naturalization Service advised defendant that he was deportable as an aggravated felon as defined by the Immigration Nationality Act § 101(a)(43)(R). Dec. Adinolfi, Exh. D. After serving ten and one-

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half months, defendant was released and deported. He currently resides in the Dominican Republic. Id. at Exh. B.

Discussion

Legal Standard for a Writ of Audita Querela

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. "Audita querela is a 'writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses.' " Mora v. United States, No. 94 Cr. 729, 2009 WL 36779, at *2 (E.D.N.Y. Jan. 06, 2009) (quoting Black's Law Dictionary 141 (8th ed. 2004)).

With respect to criminal convictions, a writ of audita querela is available in very limited circumstances. United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). "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. (citing United States v. Holder, 936 F.2d 1, 5 (1st Cir. 1991)). A "writ of audita querela is used to challenge 'a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.' " Durrani v. United States, 294 F. Supp. 2d 204, 217 (D. Conn. 2003) (quoting United States v. Reyes, 945 F.2d 862, 863 n.1 (5th Cir. 1991)).

"The writ also '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

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actually innocent prisoner were barred from making a previously unavailable claim under § 2241 as well as § 2255.' " United States v. Sperling, 367 Fed....