BORELLI v. UNITED STATES OF AMERICA
OPINION. Signed by Chief Judge Jose L. Linares on 9/14/17. (DD, ) N/M
*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-28 14 (JLL)
UNITED STATES OF AMERICA,
LINARES, Chief District Judge:
Presently before the Court is the petition for a writ of error comm nobis filed by Henry
Borelli (“Petitioner”) purportedly brought pursuant to the All Writs Act, 28 U.S.C.
(ECF No. 2) Respondent, United States of America (“Respondent” or “Government”), filed a
response (ECF No. 11), to which Petitioner replied (ECF No. 13). For the following reasons, the
Court will dismiss the petition.
On August 4, 1981, Petitioner. Henry Borelli, pled guilty to one count of conspiring to
transport stolen automobiles in interstate commerce in violation of 1$ U.S.C.
§ 371 and one count
of transporting stolen automobiles in interstate commerce in violation of 18 U.S.C.
§ 2312. (ECF
No. 11 at 2; ECF No. 2 at 8-25). On October 25, 1981, Petitioner was sentenced to five years
imprisonnient for the conspiracy offense, and five years of probation/supervised release to be
served consecutively to his term of imprisonment for the
§ 2312 charge. (See ECF No. 2 at 25).
Prior to the conclusion of Petitioner’s five year prison sentence, however, he was convicted in the
Southern District of New York of related crimes, for which he ultimately received a sentence of
fifleen consecutive ten year terms of imprisonment.1 See United States v. Gaggi, 811 F.2d 47,
62-63 (2d Cir. 1987). Because Petitioner received these additional consecutive sentences from
the Southern District of New York, and although he has completed the five year prison sentence
imposed by this Court, he has not yet served the five year term of supervised release to which he
was also sentenced, and he will be subject to that five year term should he complete his New York
(ECF No. 2 at 1).
In August 2016, some thirty five years afler his guilty plea,
Petitioner filed the instant petition for a writ of error corarn nobis, in which he seeks to have his
1981 conviction and sentence vacated. (ECF No. 2).
A petitioner who has completed his sentence and is no longer in custody pursuant to his
judgment of conviction but continues to suffer collateral consequences from his conviction may
seek to challenge his conviction through a petition for a writ of error corarn nobis.
v. Biondi, 600 F. App’x 45, 46 (3d Cir. 2015); see also United States v. Stoneman, 870 F.2d 102,
105-06 (3d Cir. 1989).
A writ of error coram nobis, however, “is an ‘infrequent’ and
Petitioner also received a life sentence for murder related charges in that prosecution, but the
murder charges and Petitioner’s life sentence were vacated by the Second Circuit due to a failure
of the Government to prove that the individuals who were killed were “citizens” as required by the
statute under which Petitioner had been convicted. Gaggi, 811 F.2d at 53-58. The Second
Circuit did, however, affirm Petitioner’s fifleen consecutive ten year sentences for the non-murder
offenses in that case. Id. at 62-63.
‘extraordinary’ form of relief that is reserved for ‘exceptional circumstances.”
United States v.
Babalola, 24$ F. App’x 409, 411 (3d Cir. 2007) (quoting Stoneman, 870 F.2d at 106). Indeed,
the Supreme Court has observed that the granting of a writ of error coram nobis is so extreme a
remedy that it “is difficult to conceive of a situation in a federal criminal case today where [coi-ain
nobis relief] would be necessary or appropriate.” Carlisle
United States, 517 U.S. 416, 429
As the Third Circuit has explained,
Because of the strong interest in finality of judgments, the standard
for a collateral attack on a conviction via a writ of error coram nobis
is more stringent than the standard applicable on a direct appeal.
Indeed, because a defendant seeking coram nobis relief has already
completed her sentence, the interests in favor of revisiting the
judgment are even less than in the habeas context, where the
petitioner is still “in custody.” Thus, only where there are errors of
fact of the most fundamental kind, that is, such as to render the
can redress be had, and
proceeding itself irregular and invalid
relief will be granted only when circumstances compel such action
to achieve justice. Despite this heavy burden, both the Supreme
Court and [the Third Circuit] have reaffirned the continued existence
of coram nobis relief in the appropriate circumstances.
In addition to the cardinal requirement for issuance of the
the most fundamental kind had infected the
writ that errors of.
proceedings, this court has articulated several other threshold
considerations to coram nobis relief. A comm nobis petitioner
must also show that (1) he is suffering from continuing
consequences of the allegedly invalid conviction, (2) there was no
remedy available at the time of trial, and that (3) sound reasons exist
for failing to seek relief earlier. Of course, earlier proceedings are
presumptively correct and the petitioner bears the burden to show
Babalola, 248 F. App’x at 411-12 (internal quotations and citations omitted); see also Stoneman,
870 F.2d at 106, United States v. Osser, $64 F.2d 1056, 1059-62. Failure to establish any of the
above elements will defeat a petition for
relief. Stoneman, 870 F.2d at 106.
As this Court has noted above, although Petitioner has completed the imprisonment portion
of his sentence, he remains subject to a period of supervised release that he has yet to serve becatise
he remains incarcerated pursuant to a judgment entered in the Southern District of New York. A
petition for a writ of error
nobis may oniy be pursued by those petitioners who are not “in
custody” pursuant to the conviction they seek to challenge. See Stonernan, $70 F.2d at 105-06
(corarn nobis petition can be sought only “when the petitioner has served his sentence and is no
longer ‘in custody’ for purposes of’ a motion to vacate sentence under 28 U.S.C.
United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000).
§ 2255); see also
A petitioner may therefore not
“utilize coram nobis” unless he has “completely served [his] sentence.”
986 F.2d 669, 676 (3d Cir.), cert. denied, 510 U.S. 826 (1993); see also United States v. Rhines,
640 F.3d 69, 71 (3d Cir. 2011). Thus, if a petitioner is “in custody” for the purposes of § 2255,
he is barred from seeking coram nobis relief, and is instead limited to whatever relief may be
available pursuant to
§ 2255. See Rhines, 640 F.3d at 7 1-72 (corctm nobis only available to those
not in custody; that a petitioner is procedurally barred from seeking
§ 2255 relief for whatever
reason will not make corant nobis relief available so long as petitioner remains in custody); see
also Baptiste, 223 F.3d at 189-90.
Whether a petitioner is “in custody” for the purposes of 2$ U.S.C.
§ 2255 is not simply a
question of whether he is still serving a custodial sentence. See, e.g., United Stcttes v. Baird, 312
F. App’x 449, 450 (3d Cir. 2008). A petitioner who is on supervised release, or is still subject to
a period of supervised release upon his release from prison, pursuant to the conviction he seeks to
challenge remains “in custody” for the purposes of
and as such a petitioner on or still
subject to supervised release remains “in custody” and may not seek relief via a petition for a writ
of error coram nobis. Id.
In this inatter, Petitioner as much as admits that although he has served
the five year prison sentence he received from this Court, he has not yet served his five year
supervised release ten-n because he remains in prison pursuant to a judgment entered against him
in the Southern District of New York. (ECF No. 2 at 1); see also United States v. Borelli, Docket
No. 84-63, ECF No. 886 at (S.D.N.Y Feb. 24, 2017). Because Petitioner has not yet served his
supervised release term and will only serve that ten-n once he is released from prison on the charges
incurred in New York, Petitioner remains “in custody” for
See United States v.
Kaplan, Nos. 13-5295 and 14-1007, 2015 WL 1268194, at *2 (D.N.J. Mar. 18, 2015). Because
Petitioner remains “in custody” for the purposes of § 2255, coram nobis relief remains unavailable
to him, and his current petition must therefore be dismissed.2
Because Petitioner remains “in custody” for § 2255 purposes, the only means through which he
i-nay challenge his conviction would be through a motion to vacate sentence brought pursuant to §
2255. Section 2255 motions, however, are subject to a one year statute of limitations. See 28
U.S.C. § 2255(f). For those petitioners whose convictions became final prior to the adoption of
the AntiteiTorism and Effective Death Penalty Act of 1996, that one year limitations period runs
from AEDPA’s effective date April 24, 1996. See, e.g., Geiger v. Balicki, No. 2011 WL
345930, at *2 (D.N.J. Feb. 2, 2011). Petitioner’s one year limitations period thus would have
elapsed in April 1997 absent some basis for the tolling of the limitations period. As Petitioner did
not file his coram nobis petition until August 2016, his coram nobis petition, if reconstrued as a §
2255 motion, would most likely be time barred by nearly twenty years. As such. it would be of no
benefit to Petitioner for this Court to reconstrue his barred coram nobis petition as a i-notion to
vacate sentence pursuant to 28 U.S.C. § 2255. Because such a recharacterization would be of no
benefit to Petitioner, and indeed could have some negative consequences were a reconstnied
petition dismissed as time barred pursuant to § 2255(f), see Castro v. United States, 540 U.S. 375,
383 (2003), and because Petitioner specifically sought relief pursuant to the “remedy of coram
nobis” only in his petition, this Court will not reconstrue the petition as a § 2255 motion. To the
For the reasons stated above, petitioner’s petition for a writ of error
DISMISSED. An appropriate order follows.
,JO,E L. LINARES,
,9hief Judge, United States District Court
extent Petitioner wishes to challenge his conviction pursuant to
2255, he may do so by filing an
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