United States v. Sperling , 367 F. App'x 213 ( 2010 )

08-3625-pr
United States v. Sperling
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 .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 23 rd day of February, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GUIDO CALABRESI,
9 Senior Circuit Judge,
10 CHRISTOPHER F. DRONEY, *
11 District Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 United States of America,
15 Appellee,
16
17 -v.- 08-3625-pr
18
19 Herbert Sperling,
20 Plaintiff-Appellant.
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR APPELLANT: Herbert Sperling, pro se, White
24 Deer, PA.
*
Christopher F. Droney, Judge of the United States
District Court for the District of Connecticut, sitting by
designation.
1
1 FOR APPELLEE: Lev L. Dassin, Acting United States
2 Attorney for the Southern District
3 of New York (Steve C. Lee, Katherine
4 Polk Failla, Assistant United States
5 Attorneys, Of Counsel), New York,
6 NY.
7
8 Appeal from an order of the United States District
9 Court for the Southern District of New York (Stein, J.).
10 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11 AND DECREED that the order of the district court be
12 AFFIRMED.
13 Herbert Sperling, pro se, appeals from an order entered
14 June 23, 2008 in the United States District Court for the
15 Southern District of New York (Stein, J.), denying his
16 petition for a writ of audita querela. We assume the
17 parties’ familiarity with the underlying facts, the
18 procedural history of the case, and the issues on appeal.
19 We review de novo an order granting or denying a writ
20 of audita querela. United States v. Richter, 510 F.3d 103,
21 104 (2d Cir. 2007) (per curiam). The writ of audita querela
22 “remain[s] available in very limited circumstances with
23 respect to criminal convictions.” United States v.
24 LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). It “is probably
25 available where there is a legal, as contrasted with an
26 equitable, objection to a conviction that has arisen
27 subsequent to the conviction and that is not redressable
28 pursuant to another post-conviction remedy.” Id.; see also
29 United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th
30 Cir. 2001) (per curiam) (noting that the writ “survive[s]
31 only to the extent that [it] fill[s] ‘gaps’ in the current
32 systems of postconviction relief”). And the writ also
33 “might be deemed available if [its] existence were necessary
34 to avoid serious questions as to the constitutional validity
35 of both § 2255 and § 2244--if, for example, an actually
36 innocent prisoner were barred from making a previously
37 unavailable claim under § 2241 as well as § 2255.”
38 Triestman v. United States, 124 F.3d 361, 380 n.24 (2d Cir.
39 1997).
40 The instant case does not justify this unusual form of
41 relief. First, it is not so that no other avenue of
42 judicial review was available. Sperling’s constitutional
43 claims based on our affirmance of his 1973 conviction for
2
1 engaging in a continuing criminal enterprise (“CCE”), in
2 violation of 21 U.S.C. § 848, were considered with respect
3 to his two 28 U.S.C. § 2255 motions, and we affirmed the
4 denials of those motions. Insofar as Sperling subsequently
5 raises a new claim by invoking Richardson v. United States,
6 526 U.S. 813 (1999), the denial of his June 2000 § 2255
7 motion as an impermissible successive motion does not render
8 § 2255 an inadequate or ineffective remedy. Cf.
9 Valdez-Pacheco, 237 F.3d at 1080; Triestman, 124 F.3d at10 376-77. Moreover, Sperling subsequently raised his
11 Richardson claim in a 2003 Rule 60(b) motion, which the
12 district court denied on the merits, and we declined to
13 grant a certificate of appealability. Accordingly,
14 Sperling’s claims have received consideration.
15 Insofar as Sperling nevertheless argues that adequate
16 relief was unavailable, he would have to show that this is a
17 case in which “the failure to allow for collateral review
18 would raise serious constitutional questions.” Triestman,
19 124 F.3d at 377. However, he does not argue that his
20 conduct was rendered non-criminal by the intervening
21 statutory interpretation in Richardson. Cf. id.22 Furthermore, the requirements of Richardson were met, given
23 that: [1] the trial court instructed the jury in a manner
24 that was consistent with Richardson’s holding that “a jury
25 in a federal criminal case brought under [21 U.S.C.] § 848
26 must unanimously agree . . . that the defendant committed
27 each of the individual ‘violations’ necessary to make up
28 that ‘continuing series,’” 526 U.S. at 815; and [2] the jury
29 unanimously found Sperling to have committed the violations
30 that were the subject of the predicate counts against him.
31 Accordingly, this is not one of the “very limited
32 circumstances” for which the possibility of audita querela
33 relief has been preserved.
34 Finding no merit in Sperling’s remaining arguments, we
35 hereby AFFIRM the judgment of the district court.
36
37
38 FOR THE COURT:
39 CATHERINE O’HAGAN WOLFE, CLERK
40
3