Espinoza v. United States of America

Filing 2

ORDER entered by Judge Michael M. Mihm on 5/12/2011 re 1 Petition is DISMISSED FOR LACK OF JURISDICTION. This matter is terminated. (MZ, ilcd)

E-FILED

Thursday, 12 May, 2011 10:29:42 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
ROBERT A. ESPINOZA,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 11-4023

ORDER
Now before the Court is Petitioner Robert A. Espinoza’s (“Espinoza”) “Petition for
Extraordinary Relief in the Nature of Audita Querela, Mandamus, Coram Nobis, Coram Vobis,
Prohibition, Habeas Corpus and/or Injunctive or any other Extraordinary Relief Pursuant to Title
28 U.S.C. § 1651.” For the reasons set forth below, the Petition is construed as a successive
Motion to Vacate, Set Aside, or Correct Sentence [#1], and is DISMISSED FOR LACK OF
JURISDICTION.
BACKGROUND
Espinoza was convicted on November 6, 2001, in the United States District Court for the
Central District of Illinois, following a jury trial. He was found guilty of racketeering in
violation of 18 U.S.C. § 1962(c) (Count 1), conspiracy to commit racketeering in violation of 18
U.S.C. § 1962(d) (Count 2), conspiracy to distribute and possess with intent to distribute
marijuana in violation of 18 U.S.C. §§ 841(a)(1) and 846 (Count 5), unlawful possession of a
firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) (Count 6), and using and carrying a
firearm, an incendiary device, during and in relation to a crime of violence in violation of 18
U.S.C. § 924(c)(1)(A) and (c)(1)(B)(ii) and (2) (Count 7). On March 1, 2002, Espinoza was
1

sentenced to 240 months in prison on Counts 1 and 2, 60 months on Count 5, and 120 months on
Count 6, all to run concurrently. He was sentenced to 360 months on Count 7 to run
consecutively to Counts 1, 2, 5, and 6. He was further sentenced to a 3-year term of supervised
release and a $500.00 Special Assessment was imposed and due immediately.
Espinoza filed a direct appeal, and the Seventh Circuit affirmed his conviction on
December 5, 2002. 52 F. App’x 846, 850 (7th Cir. 2002). Espinoza’s Petition for Writ of
Certiorari to the United States Supreme Court was denied on May 27, 2003. Espinoza v. United
States, 538 U.S. 1065 (2003). On April 29, 2004, he filed a Motion to Vacate, Set Aside, or
Correct sentence pursuant to 28 U.S.C. § 2255. On July 14, 2004, Espinoza’s § 2255 Motion
was dismissed for failure to prosecute. The District Court then vacated the dismissal and
allowed Espinoza to file an amended § 2255 Motion, which he did on September 10, 2004. In
his § 2255 Motion, Espinoza claimed that he received ineffective assistance of counsel during
his pre-trial, trial, and appellate representation. On December 19, 2006, his § 2255 Motion was
denied. On June 6, 2007, the Seventh Circuit denied Espinoza’s application for certificate of
appealability.
In September 2008, Espinoza filed a motion for relief from judgment pursuant to Federal
Rule of Civil Procedure 60(b)(6), seeking to have his § 2255 habeas proceedings reopened. That
motion was denied on December 18, 2009. He again appealed the denial of his § 2255 motion,
and the Seventh Circuit denied Espinoza’s application for certificate of appealability and motion
to proceed in forma pauperis on August 20, 2010. Espinoza now brings the instant “Petition for
Extraordinary Relief in the Nature of Audita Querela, Mandamus, Coram Nobis, Coram Vobis,
Prohibition, Habeas Corpus and/or Injunctive or any other Extraordinary Relief Pursuant to Title

2

28 U.S.C. § 1651.” This Order follows.
DISCUSSION
The Seventh Circuit has rejected the use of Writs of Error Coram Nobis as a means of
circumventing the procedural bars imposed by motions brought pursuant to § 2255. Specifically,
the Court of Appeals has held:
Prisoners cannot avoid the AEDPA's rules by inventive captioning.
See, e.g. Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000) (application
for coram nobis); United States v. Evans, 224 F.3d 670 (7th Cir.
2000) (use of Rule 33 based on matters other than newly
discovered evidence of innocence). Any motion filed in the
district court that imposed the sentence, and substantively within
the scope of § 2255 ¶ 1, is a motion under § 2255, no matter what
title the prisoner plasters on the cover. See, e.g., Ramunno v.
United States, 264 F.3d 723 (7th Cir. 2001). Call it a motion for
new trial, arrest of judgment, mandamus, prohibition, coram nobis,
coram vobis, audita querela, certiorari, capias, habeas corpus,
ejectment, quare impedit, bill of review, writ of error, or an
application for a Get-Out-of-Jail Card; the name makes no
difference. It is substance that controls.
Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004).
Paragraph 1 of § 2255 provides that federal prisoners claiming the right to be released
based on a sentence being imposed in violation of the Constitution or federal law, lack of
jurisdiction, a sentence in excess of the maximum authorized by law, or based on other collateral
attacks can file a motion in the court that imposed sentence to vacate, set aside, or correct the
sentence. 28 U.S.C. § 2255. Espinoza's Petition alleges that the $500.00 Special Assessment:
1) was unlawfully imposed and collected, 2) was unauthorized by Congress as outlined by
Supreme Court and Sixth Circuit decisions to which he cites, and 3) that it constitutes double
jeopardy, excessive fines and penalties, and cruel and unusual punishment. He argues that he
must be immediately released from imprisonment because he has satisfied his sentence by the
3

payment of unauthorized consecutive Special Assessments. Such claims are well within the
coverage of ¶1 of § 2255. Thus, under Melton, the present filing is actually a motion under §
2255, which the Court is required to dismiss for lack of jurisdiction because Espinoza has not
received permission from the Seventh Circuit to commence a second or successive collateral
attack.
CONCLUSION
For the reasons set forth above, Petitioner Robert A. Espinoza's “Petition for
Extraordinary Relief in the Nature of Audita Querela, Mandamus, Coram Nobis, Coram Vobis,
Prohibition, Habeas Corpus and/or Injunctive or any other Extraordinary Relief Pursuant to Title
28 U.S.C. § 1651" [#1] is DISMISSED FOR LACK OF JURISDICTION. This matter is
terminated.
ENTERED this 12th day of May, 2011.
s/ Michael M. Mihm
Michael M. Mihm
United States District Judge

4