     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 at
10   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




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