ALD-202                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 12-1614
                                      ____________

                                LEONARD A. PELULLO,
                                               Appellant,
                                        v.

                           UNITED STATES OF AMERICA
                        __________________________________

                   On Appeal from the United States District Court
                             for the District of New Jersey
     (D.C. Civ. Nos. 11-cv-06678 and 01-00124; D.C. Crim. No. 94-cr-00276-002)
                        District Judge: Dickinson R. Debevoise
                      __________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                     June 14, 2012

                Before: SLOVITER, FISHER and WEIS, Circuit Judges
                           (Opinion filed: June 26, 2012)
                                  ____________

                                        OPINION
                                      ____________


PER CURIAM.

       Appellant Leonard Pelullo, a federal prisoner, is currently serving a sentence

imposed by the United States District Court for the District of New Jersey for

embezzlement and money laundering. We affirmed the judgment of conviction and

sentence in United States v. Pelullo, 185 F.3d 863 (3d Cir. 1999) (table) (“Pelullo I”).

                                             1
We described a decade of litigation since then in Pelullo v. United States, 352 Fed. Appx.

620 (3d Cir. 2009), which the instant appeal does not require us to repeat.

       On May 17, 2010, Pelullo moved for relief pursuant to Fed. Rule Civ. Pro. 60(b)

and (d) on the ground that the Government misrepresented to us in a prior appeal, see

United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005), that the Pension & Welfare

Benefits Administration (“PWBA”) was not a part of the prosecution team. The

Government’s assertion was in support of its argument that it could not be held

responsible for failure to disclose documents that the PWBA possessed that could

otherwise be classified as Brady material, Brady v. Maryland, 373 U.S. 83 (1963).1 This

motion was supported by documents Pelullo had recently received pursuant to a request

under the Freedom of Information Act.

       On July 22, 2011, the District Court disposed of Pelullo’s May 17, 2010 Rule

60(b) and (d) motion by determining that it lacked jurisdiction because the motion was, in

reality, an unauthorized second or successive section 2255 motion. See United States v.

Pelullo, 2011 WL 3022534 (D.N.J. July 22, 2011). The District Court transferred the

matter to us for treatment as an application for leave to filed a second or successive

section 2255 motion, 28 U.S.C. § 2255(h), resulting in an appeal docketed at C.A. No.

11-3134. Pelullo also appealed this decision, resulting in an appeal docketed at C.A. No.

1
  In Pelullo, 399 F.3d 197, we held that there was no suppression by the Government of
the warehouse documents, see id. at 216, and that the PWBA as an entity was not part of
the prosecution team and thus the prosecution team was not required to disclose
documents possessed by PWBA officials, see id. at 216-19. We thus found it
unnecessary to decide whether the withheld documents were material and favorable to the
defense and whether there was a reasonable probability that the evidence would have
changed the result of the proceeding, see id. at 219.
                                             2
11-3222. The two appeals have been consolidated and are currently pending before us.

Pelullo is represented by counsel in these appeals.

       Rather than awaiting the outcome of the above-referenced appeals, on November

4, 2011, Pelullo filed an item pro se in the district court titled “Motion for the Court to

Exercise Its Supervisory Power to Dismiss the Indictment or Grant a New Trial and to

Initiate Disbarment Proceedings Against the Prosecutors and Hold Those Prosecutors in

Contempt for Violating Courts [sic] Orders.” In this motion, Pelullo sought to vacate the

District Court’s July 22, 2011 Order on the ground that two Assistant United States

Attorneys knowingly filed false affidavits in the matter currently on appeal. Pelullo

argued that their conduct violated certain criminal statutes, and he also argued that their

conduct and the conduct of one other prosecutor violated the New Jersey Rules of

Professional Conduct. Pelullo further asked to be released on bail.

       In an order entered on January 25, 2012, the District Court denied the motion for

lack of jurisdiction and denied the bail application. See United States v. Pelullo, 2012

WL 243538, *5 (D.N.J. January 25, 2012).2 The District Court further held that, even if

jurisdiction was not lacking, Pelullo’s claims would not justify relief. See id. at *5-*12.

In so holding, the District Court observed that it had the documents upon which Pelullo

now relied when it issued its July, 2011 Order, see id. at *3, and that Pelullo’s argument

concerned only a “handful” of alleged misstatements, see id. at *5.


2
  We agree with the District Court that, to the extent Pelullo was seeking to collaterally
attack his conviction and sentence, the motion is a second or successive section 2255
motion. Absent our prior authorization, the District Court lacked jurisdiction to consider
it. See 28 U.S.C. §§ 2255(h).
                                              3
       Pelullo appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk advised

him that the appeal may warrant summary action under Third Cir. LAR 27.4 and I.O.P.

10.6. The parties have filed responses which we have considered.

       We will summarily affirm the order of the District Court because no substantial

question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Our

standard of review over questions of law is plenary. See United States v. Washington,

549 F.3d 905, 911 (3d Cir. 2008). The District Court properly declined to exercise its

supervisory or inherent power to award Pelullo a new trial or to dismiss the indictment.

Pelullo may not invoke the court’s inherent or supervisory power merely because he

cannot meet the gatekeeping requirements for a second or successive section 2255

motion; otherwise, the gatekeeping requirements enacted by Congress would be

meaningless. See United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000)

(procedural barriers erected by AEDPA are insufficient to enable petitioner to resort to

coram nobis). See also United States v. Barrett, 178 F.3d 34, 55 & n.18 (1st Cir. 1999)

(All Writs Act does not authorize federal courts to issue ad hoc writs whenever

compliance with statutory procedures is inconvenient). The Supreme Court held in

Carlisle v. United States, 517 U.S. 416, 425–28 (1996), that federal courts lack “inherent

supervisory power” to enter an untimely judgment of acquittal sua sponte when doing so

is in clear contradiction of Federal Rule of Criminal Procedure 29(c), and we held in

Washington, 549 F.3d at 914-17, that a federal district court lacks inherent power to

vacate a criminal judgment procured through fraud. It necessarily follows that the

District Court properly declined to grant the relief Pelullo requested.

                                              4
       Although the District Court has inherent authority to discipline attorneys for

unprofessional conduct, see In re: Surrick, 338 F.3d 224, 231 (3d Cir. 2003), Pelullo

provided no basis for the District Court to do so here, because his claim of fraudulent

misrepresentations by the staff of the U.S. Attorney’s Office is meritless for the reasons

given in the court’s thoughtful opinion, Pelullo, 2012 WL 243538, *5-*12 (“Nothing

provided by [Pelullo] suggests actual knowledge or deliberate fraud by the government

that would justify either an ethics inquiry or some other form of extraordinary

intervention by the Court.”). Further, as explained by the District Court, bail pending

disposition of habeas corpus review is available “only when the petitioner has raised

substantial claims upon which he has a high probability of success or exceptional

circumstances exist which make a grant of bail necessary to make the habeas remedy

effective.” Landano v. Rufferty, 970 F.2d 1230, 1239 (3d Cir.1992). Pelullo did not

make this showing and thus bail was not warranted.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Pelullo’s “Motion for the Court to Exercise Its Supervisory Power to Dismiss the

Indictment or Grant a New Trial, etc.” as meritless and for lack of jurisdiction.




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