Chan v. United States of America
Filing
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MEMORANDUM & ORDER: Petitioner's 3 application to proceed in forma pauperis is granted for the limited purpose of my denying petitioner's request for counsel and dismissing the petition. The petition for a writ of audita querela is dismi ssed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. C/M. Forwarded for judgment. Ordered by Senior Judge Raymond J. Dearie on 5/9/2011. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK.
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BRIAN CHAN,
Plaintiff,
MEMORANDUM & ORDER
- againstII CV 1420 (RJD) (LB)
UNITED STATES OF AMERICA,
Defendants.
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DEARIE, District Judge.
Petitioner Brian Chan, currently incarcerated at the United States Penitentiary in Atwater,
California, petitions pro se for a writ of audita querela pursuant to the All Writs Act, 28 U.S.C.
§ 1651 (a). Petitioner's application to proceed in forma pauperis is granted for the limited
purpose of my denying petitioner's request for counsel and dismissing the petition.
Background
In April 1992, following a trial before the Honorable Reena Raggi, a jury convicted
petitioner of racketeering, murder, manslaughter, kidnapping and conspiracy to murder a
witness. See United States v. Chung, 90 CR 1019 (RJD). In October 1992, Judge Raggi
sentenced petitioner to life in prison and imposed a $1 million fine. In November 1994, the
Second Circuit affirmed the conviction and sentence but vacated the fine. See United States v.
Wong, 40 F.3d 1347 (2d Cir. 1994). After Judge Raggi issued an amended judgment, petitioner
moved twice for reconsideration. I denied those motions in June 2006 and September 2007.
In November 1997, Judge Raggi denied petitioner's request for a writ of habeas corpus
pursuant to 28 U.S.C. § 2255. See Chan v. United States, No. 97 CV 2182 (RR). Petitioner
appealed unsuccessfully. In August 2000, the Second Circuit denied petitioner's request for
permission to file a second § 2255 petition.
By submission dated March 18, 20 II, petitioner seeks "relief from his unconstitutional
conviction and sentence by way ofa Writ of Audita Querela, 28 U.S.C. § 1651." (Notice ofMot.
at I.) Specifically, petitioner alleges that the court lacked subject matter jurisdiction under the
Juvenile Justice and Delinquency Prevention Act, 18 U .S.C. § 5031, because the government
allegedly failed to comply with the Act's certification provision. Petitioner also alleges that he
was forced to pay a consecutive special assessment which amounted to "double jeopardy and
cruel and unusual punishment." (.!QJ I decline to reach these issues because no writ of audita
querela is available to petitioner.
Discussion
"[I]n a civil action in which a prisoner seeks redress from [an] officer or employee of a
governmental entity," such as the action here, a court may dismiss the complaint or any portion
of the complaint if it "is frivolous, malicious, or fails to state a claim upon which relief may be
granted." 28 U.S.C. §§ 1915A(a)-(b). A court may dismiss an action filed in forma pauperis for
the same reasons. See 28 U.S.C. § 1915(e)(2). "Such dismissals must accord the inmate an
opportunity to amend the complaint 'unless the court can rule out any possibility, however
unlikely it might be, that an amended complaint would succeed in stating a claim. '" Abbas v.
Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d
794,796 (2d Cir.1999». In applying these rules, the Court is mindful that "[a] pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks omitted).
Although formally abolished in civil cases, see Fed. R. Civ. P. 60(e), the ancient writ of
audita querela "remain[s] available in very limited circumstances with respect to criminal
convictions," United States v. LaPlante, 57 F.3d 252,253 (2d Cir. 1995). A remedy oflast
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resort, the writ may be used only to fill gaps in the statutory framework of post-conviction relief
afforded by 28 U.S.C. §§ 2244 and 2255. "In other words, if the absence of any avenue of
collateral attack would raise serious constitutional questions about the laws limiting those
avenues, then a writ of audita querela would lie." United States v. Richter, 510 F.3d 103, 104
(2d Cir. 2007).
Petitioner's invocation of audita querela is meritless. The allegations underlying
petitioner's motion, relating to events occurring at his trial and sentence, could have been raised
on direct appeal of his conviction or through his previous petitions brought under § 2255. See
Triestman v. United States, 124 F.3d 361, 376 (2d Cir. 1997). In particular, two of petitioner's
co-defendants argued on direct appeal that the trial court lacked subject matter jurisdiction under
the Juvenile Justice and Delinquency Prevention Act, an issue clearly ripe for review almost two
decades ago and which the Second Circuit addressed at length. See Wong, 40 F.3d at 1365.
Accordingly, there is no gap in the post-conviction remedies available to petitioner, who has
already requested relief through available channels. That these previous petitions lacked success
does not allow petitioner to circumvent the requirements of the Antiterrorism and Effective
Death Penalty Act of 1996, which already have proved insurmountable, by recasting his next
habeas petition as one for a writ of audita querela. See, e.g., Triestman, 124 F.3d at 376-77
(holding that § 2255 is not considered an "inadequate or ineffective" post-conviction remedy
merely because it is procedurally unavailable); Persaud v. United States, 2009 WL 136027, at *2
(E.D.N.Y.2009).
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Conclusion
The petition for a writ of audita querela is dismissed. The Court certifies pursuant to
28 U.S.C. § 1915 (a)(3) that any appeal from this order would not be taken in good faith and
therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United
States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: Brookl~n, New York
May
2011
-q-,
s/ Judge Raymond J. Dearie
RA Yij1@Y.bEARIE
United States District Judge
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