     13-464-cr
     UNITED STATES v. QUINTIERI

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 27th day of November, two thousand thirteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-464-cr
16
17       ERNESTO QUINTIERI,
18                Defendant-Appellants.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        ROBERT J. ADINOLFI, LOUIS &
22                                             ADINOLFI, NEW YORK, New York.
23
24       FOR APPELLEES:                        PETER A. NORLING (with AMY BUSA
25                                             on the brief), Assistant United
26                                             States Attorneys, for LORETTA E.
27                                             LYNCH, United States Attorney
28                                             for the Eastern District of New
29                                             York.

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Eastern District of New York (Platt, J.).
 3
 4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 5   AND DECREED that the judgment of the district court be
 6   AFFIRMED.
 7
 8        Appellant Ernesto Quintieri (“appellant”) appeals the
 9   judgment denying his petition for a writ of audita querela.
10   We assume the parties’ familiarity with the underlying facts
11   and the procedural history of the case.
12
13        We review de novo a district court’s denial of such a
14   writ. See United States v. Richter, 510 F.3d 103, 104 (2d
15   Cir. 2007). A writ of audita querela is an extraordinary
16   remedy under the All Writs Act, 28 U.S.C. § 1651(a), and is
17   generally available only if “the absence of any avenue of
18   collateral attack would raise serious constitutional
19   questions about the laws limiting those avenues.” Id. The
20   writ is generally not available to review a criminal
21   conviction if the petitioner could have raised his or her
22   claims in a 28 U.S.C. § 2255 motion. See id. (“[The writ of
23   audita querela] is probably available where there is a
24   legal, as contrasted with an equitable, objection to a
25   conviction that has arisen subsequent to the conviction and
26   that is not redressable pursuant to another post-conviction
27   remedy.”) (internal quotation marks omitted); see also
28   United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th
29   Cir. 2001) (per curiam) (noting that the writ “survive[s]
30   only to the extent that [it] fill[s] ‘gaps’ in the current
31   systems of postconviction relief”). Similarly, “if the
32   absence of any avenue of collateral attack would raise
33   serious constitutional questions about the laws limiting
34   those avenues, then a writ of audita querela would lie.”
35   Richter, 510 F.3d at 104.
36
37        On October 6, 2000, Appellant was sentenced to 366
38   days’ imprisonment based on his guilty plea to one count of
39   knowingly possessing a counterfeit check with the intent to
40   deceive another person, in violation of 18 U.S.C. § 513(a).
41
42        Appellant argues that, at the time of his sentencing,
43   defense counsel failed to advocate for a downward departure
44   to a 364-day sentence (as opposed to the year-and-a-day

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 1   sentence imposed), so that Appellant, then a lawful
 2   permanent resident, would not have been subjected to
 3   automatic removal from the United States for having
 4   committed an aggravated felony.
 5
 6        A claim of ineffective assistance of counsel on the
 7   ground that Appellant’s attorney failed to argue for a
 8   downward departure and a 364-day sentence was cognizable on
 9   direct appeal and under § 2255. It is true, as Appellant
10   points out, that at the time of the sentencing, we had not
11   yet held that an attorney’s failure to inform a client of
12   the deportation consequences of a guilty plea or sentence
13   (rather than affirmative misadvice of those consequences)
14   constitutes ineffective assistance. However, we signaled
15   support for such a claim well within the time period in
16   which Appellant could have brought a § 2255 petition. See
17   United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002)
18   (“[O]n some occasions, we have suggested that an attorney
19   does have a duty to provide that information. . . .
20   Moreover, recent Supreme Court authority supports this
21   broader view of attorney responsibility as well.”)
22   (citations omitted). Therefore, the basis for the present
23   petition was not legally foreclosed during the time period
24   during which he could have brought a § 2255 petition.1

         1
              Even if it had been foreclosed, the U.S. Supreme
     Court’s decision in Padilla v. Kentucky, 559 U.S. 356, 130
     (2010), holding that the Sixth Amendment requires an
     attorney for a criminal defendant to provide advice about
     the risk of deportation arising from a guilty plea, on which
     Appellant’s claim is ultimately founded, is not afforded
     retroactive application. Chaidez v. United States, 133 S.
     Ct. 1103, 1110-11 (2013). Appellant may not employ the writ
     of audita querela to circumvent the retroactivity
     limitations imposed by Congress and the Supreme Court on
     postconviction remedies--at least where, as here,
     Appellant’s claim does not raise serious constitutional
     questions regarding the validity of § 2244 and § 2255: when
     a rule of law is “new” such that it is not made retroactive
     on collateral review, the “true impediment [to bringing that
     claim under § 2255] is [the new rule] itself, not the remedy
     by § 2255 motion.” Love v. Menifee, 333 F.3d 69, 74 (2d
     Cir. 2003) (appellant barred from raising Apprendi
     challenge). Thus, “[b]ecause the section 2255 gatekeeping
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 1   Accordingly, this alleged failure by Appellant’s counsel
 2   does not provide a basis for a granting of the writ of
 3   audita querela.
 4
 5        For the foregoing reasons, and finding no merit in
 6   Appellant’s other arguments, we hereby AFFIRM the judgment
 7   of the district court.
 8
 9                              FOR THE COURT:
10                              CATHERINE O’HAGAN WOLFE, CLERK
11




     provisions are not responsible for [Appellant’s] inability
     to raise his [Padilla-based] claim, there can be no ‘serious
     constitutional question’ raised by requiring him to proceed
     under that section.” Id.
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