    10-2535-pr
    Pipola 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 15th day of July, two thousand eleven.

    PRESENT:    JON O. NEWMAN,
                PIERRE N. LEVAL,
                ROSEMARY S. POOLER,
                      Circuit Judges.
    __________________________________________

    ANTHONY PIPOLA,

                              Petitioner-Appellant,

               -v.-                                               10-2535-pr

   UNITED STATES OF AMERICA,

                      Respondent-Appellee,
    __________________________________________

    FOR APPELLANT:                   Anthony Pipola, pro se, White Deer, PA.

    FOR APPELLEE:                    Emily Berger, Amir H. Toossi, Assistant United States Attorneys,
                                     Of Counsel, for Loretta E. Lynch, 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
    (Johnson, J.).
           UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

        Appellant Anthony Pipola, proceeding pro se, appeals from the district court’s final order
denying his petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651(a),
and moves for appointment of counsel and leave to proceed in forma pauperis. We assume the
parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on
appeal.

        As an initial matter, and for the reasons discussed below, we deny Pipola’s motion for
appointment of counsel and leave to proceed in forma pauperis because Pipola’s petition fails to
state a claim on which relief may be granted. Id. § 1915(e)(2)(B)(ii).

         We review de novo a district court’s denial of a writ of audita querela. United States v.
Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). “The All Writs Act is a residual source
of authority to issue writs that are not otherwise covered by statute.” Pennsylvania Bureau of
Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). As a result, “[w]here a statute
specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act,
that is controlling.” Id.

        Here, the writ of audita querela is not an available remedy, because, as a federal prisoner
challenging the legality of his conviction, the relief Pipola seeks is covered by statute: 28 U.S.C.
§ 2255(a). See also Cephas v. Nash, 328 F.3d 98, 103 (2d Cir. 2003) (“[F]ederal prisoners
challenging the legality of their convictions or sentences must proceed by way of motion
pursuant to 28 U.S.C. § 2255 . . . .”). This conclusion is not undermined by the fact that any
Section 2255 motion filed by Pipola must satisfy the threshold requirements applicable to
successive Section 2255 motions, as he has already filed a Section 2255 motion challenging the
conviction at issue that was denied on the merits. See Quezada v. Smith, 624 F.3d 514, 517 (2d
Cir. 2010) (defining when a Section 2255 motion is “second or successive” under the
Antiterrorism and Effective Death Penalty Act of 1996); Sines v. Wilner, 609 F.3d 1070, 1073
(10th Cir. 2010) (“[T]he remedy under § 2255 is not inadequate or ineffective merely because
the statute greatly restricts second or successive motions.”); United States v. Valdez-Pacheco,
237 F.3d 1077, 1080 (9th Cir. 2001) (“A prisoner may not circumvent valid congressional
limitations on collateral attacks by asserting that those very limitations create a gap in the
postconviction remedies that must be filled by the common law writs.”).

        Accordingly, Pipola must present his claims in an application for leave to file a
successive Section 2255 motion. Even if we construe Pipola’s notice of appeal and appellate
brief as such an application, we cannot consider it unless the application “is based on newly
discovered evidence or a new rule of constitutional law made retroactive by the Supreme Court.”
United States v. Fabian, 555 F.3d 66, 68 (2d Cir. 2009); 28 U.S.C. § 2255(h). Because Pipola
has not made such a showing in this appeal, we may not grant Pipola leave to file a successive
Section 2255 motion.

       We have considered all of Pipola’s arguments on appeal and have found them to be

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without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                          FOR THE COURT:
                                          Catherine O’Hagan Wolfe, Clerk




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