10-86-pr
Theodore Persico 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of April, two thousand and eleven.

PRESENT:

          RALPH K. WINTER,
          JOSÉ A. CABRANES,
                       Circuit Judges,
          MARK R. KRAVITZ,
                       District Judge.*


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THEODORE PERSICO,

                               Plaintiff-Appellant,

          v.                                                                               No. 10-86-pr

UNITED STATES OF AMERICA,

                                Defendant-Appellee.
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        The Honorable Mark R. Kravitz, of the United States District Court for the District of
          *

Connecticut, sitting by designation.

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FOR APPELLANT:                                              Theodore Persico, pro se, Ayer, MA.

FOR APPELLEE:                                               Peter A. Norling and Elizabeth Geddes,
                                                            Assistant United States Attorneys, of counsel
                                                            (Loretta Lynch, United States Attorney for
                                                            the Eastern District of New York, on the brief),
                                                            Office of the United States Attorney for the
                                                            Eastern District of New York, Brooklyn, NY.

       Appeal from a judgment of the United States District Court for the Eastern District of New
York (Carol B. Amon, Judge).

     UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

       Appellant Theodore Persico (“appellant”), proceeding pro se, appeals the District Court’s
judgment denying his petition for a writ of audita querela. We assume the parties’ familiarity with the
underlying facts and the procedural history of the case.

        On appeal, appellant argues that the District Court erred in finding that this Court’s holdings
in United States v. Whitley, 529 F.3d 150 (2d Cir. 2008), and United States v. Williams, 558 F.3d 166 (2d
Cir. 2009), were inapplicable to his 60-month consecutive term imprisonment pursuant to 18 U.S.C.
§ 924(c) for carrying a firearm in connection with a crime of violence.

          We review de novo a district court’s denial of a writ of audita querela. See United States v. Richter,
510 F.3d 103, 104 (2d Cir. 2007). A writ of audita querela is an extraordinary remedy under the All
Writs Act, 28 U.S.C. § 1651(a), and is generally limited to cases where “the absence of any avenue of
collateral attack would raise serious constitutional questions about the laws limiting those avenues.”
Id. Those courts that have analyzed the issue have determined that the writ is generally not available
to review a criminal conviction when the petitioner could have raised his or her claims in a
28 U.S.C. § 2255 motion. See, e.g., United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); United
States v. Valdez-Pacheco, 237 F.3d 1077, 1079-80 (9th Cir. 2001); United States v. Johnson, 962 F.2d 579,
582 (7th Cir. 1992). 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 previous § 2255 motion was denied on the merits. See, e.g., Valdez-Pacheco, 237 F.3d at 1080 (“A
prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that
those very limitations create a gap in the post-conviction remedies that must be filled by the
common law writs.”).




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         We have indicated that the writ of audita querela 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 actually innocent prisoner were barred from making a previously
unavailable claim under § 2241 as well as § 2255,” Triestman v. United States, 124 F.3d 361, 380 n.24
(2d Cir. 1997), and have cited approvingly the relevant jurisprudence of the Third Circuit, which has
noted that the writ might be available “‘[w]ere no other avenue of judicial review available for a
party who claims that [he] is factually or legally innocent as a result of a previously unavailable
statutory interpretation,’” Richter, 510 F.3d at 104 (quoting In re Dorsainvil, 119 F.3d 245, 248 (3d Cir.
1997)). Here, appellant did not present the type of circumstances in which the application of this
unusual form of relief would be appropriate. First, it was not the case that no other avenue of
judicial review was available, as his petition clearly falls within the scope of § 2255, as “the proper
vehicle for a federal prisoner’s challenge to [the imposition of] his . . . sentence.” Jiminian v. Nash,
245 F.3d 144, 146-47 (2d Cir. 2001). The fact that the limitations period under the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, tit. I, § 105, 110 Stat.
1214, 1220 (1996) bars appellant from obtaining relief on his claims in a § 2255 motion is
insufficient to render § 2255 an “inadequate or ineffective” remedy. See Valdez-Pacheco, 237 F.3d at
1080; see also Triestman, 124 F.3d at 376-77. Accordingly, there is no arguable basis for appellant to
obtain audita querela relief.

        Even if audita querela relief were available to appellant, appellant’s claim would still fail,
because the Supreme Court, in Abbott v. United States, 131 S. Ct. 18, 23 (2010), expressly overruled
our holdings in Williams and Whitley. See 131 S. Ct. at 23 (“We hold . . . that a defendant is subject to
a mandatory, consecutive sentence for a § 924(c) conviction, and is not spared from that sentence by
virtue of receiving a higher mandatory minimum on a different count of conviction.”).

                                       CONCLUSION
       We have considered appellant’s other arguments on appeal and have found them to be
without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED.

                                         FOR THE COURT,
                                         Catherine O’Hagan Wolfe, Clerk of Court




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