Pimentel v. United States of America
Filing
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MEMORANDUM & ORDER: Petitioner's 3 request to proceed in forma pauperis is granted. The 1 Petition for a Writ of Error Coram Nobis is dismissed. The Court certifies pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal f rom this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Senior Judge Sterling Johnson, Jr. on 11/30/2011. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)
fiLED
IN CLERK'S OFI'ICE
-J.S.O'<;TRICTCOURTE.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PRINT 00. NOV 3 0
ELECTRONIC PUBLICATION
2011
'='RQOKLYN OFACE
---------------------------------------------------------)(
JOANNA PIMENTEL,
MEMORANDUM & ORDER
Petitioner,
*
-againstll-CV-4724 (SJ)
THE UNITED STATES OF AMERICA,
Respondent.
----------------------------------------------------------)[
JOHNSON, Senior United States District Judge.
Petitioner Joanna Pimentel, who is currently incarcerated at the Federal Correctional
Institution in Danbury, Connecticut, brings this pro se petition seeking a writ of error under the
All Writs Act, 28 U.S.C. § 1651(a). Her request to proceed injormapauperis is granted. Forthe
reasons discussed below, the petition is dismissed.
BACKGROUND
Petitioner and a codefendant were convicted by a jury in this Court on February 10,2001.
Petitioner was convicted of murder in aid of racketeering and related offenses and sentenced to
life imprisonment. The Court denied her motion for a new trial on May 30, 2002. United States
v. Pimental, No. 99-CR-II04-SJ, 2002 WL 1208679, at *1 (E.D.N.Y. May 30, 2002). The United
States Court of Appeal for the Second Circuit affirmed the conviction on October 8, 2003, and the
United States Supreme Court denied the writ of certiorari on November 1, 2004. United States v.
Pimentel, 346 F.3d 285,305 (2d Cir. 2003), cert. denied, 543 U.S. 955 (2004).
Thereafter, petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2255 ("§ 2255"), which was denied by this Court on August 20, 2007. United States v. Pimentel,
No. 05 CV 4996, 2007 WL 2915152 (E.D.N.Y. Aug. 20, 2007). On July 23, 2010, petitioner filed
a "Motion for Modification or Reduction of Sentence" pursuant to 18 U.S.C. § 3582(c)(2), in
which she argued for the retroactive application of amendments to the Sentencing Guidelines.
That motion remains pending.
On September 27, 2011, petitioner filed the instant motion for a writ of error. She argues
that she is entitled to relief from the judgment of conviction on the basis of "recently discovered
errors of magnitude in trial issues." (Pet. at 2.) The alleged errors are (1) the misuse ofa
nickname at trial, and (2) a lack of federal jurisdiction over the charged crimes. Petitioner
attaches pages from the trial transcript that appear to be portions of the summations by the
government and defense counsel and the trial court's jury charge.
DISCUSSION
The writ of error coram nobis is a common-law writ that has largely been replaced in the
federal criminal context by the statutorily constructed writ of habeas corpus available in 28
U.S.c. § 2241 and § 2255. "Though formally abolished in civil cases, see Fed. R. Civ. P. 60(b),
the writs of error coram nobis and audita querela remain available in very limited circumstances
with respect to criminal convictions." United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995)
(citing United States v. Morgan, 346 U.S. 502 (1954), in support of the continuing validity of
coram nobis relief). Generally, prisoners must use the statutorily created remedies, and the
common-law writs are limited to circumstances where there are gaps in the statutory framework
and the unavailability of any post-conviction relief might raise questions as to the constitutional
validity of the statutory remedies. Carlisle v. United States, 517 U.S. 416, 429 (1996) ("[T]he All
Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.
Where a statute specifically addresses the particular issue at hand, it is that authority, and not the
All Writs Act, that is controlling." (quoting Pennsylvania Bureau of Correction v. United States
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Marshals Service, 474 U.S. 34,43 (1985))); Triestman v. United States, 124 F.3d 361, 380 n.24
(2d Cir. 1997)("lt is possible that these remedies might be deemed available if their existence
were necessary to avoid serious questions as to the constitutional validity of both § 2255 and §
2244"). Such a gap could exist and a writ of error coram nobis may be available where the
petitioner is no longer in custody and therefore cannot pursue direct review or collateral relief
through § 2255. Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).
The common law writs may not be used to circumvent the procedural requirements of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). "[T]he statutory limits on
second or successive habeas petitions do not create a "gap" in the post-conviction landscape that
can be filled with the common law writs." Carrington v. United States, 503 F.3d 888, 890 (9th Cir.
2007); see also Ortiz v. New York, 75 Fed. Appx. 14, 17,2003 WL 22055147, at *3 (2d Cir. Sept.
4, 2003)("Prisoners bringing actions that fall within the scope of28 U.S.C. § 2255 may not evade
the restrictions on such actions by seeking a writ of coram nobis." (citation omitted).); Triestman,
124 F.3d at 376-77 (holding that § 2255 would not be considered an "inadequate or ineffective"
post-conviction remedy merely because it was procedurally unavailable; a prisoner must also
show that "the failure to allow for collateral review would raise serious constitutional questions").
In the instant situation, the writ of error coram nobis is not available to petitioner.
Because she remains in custody, petitioner may only challenge her conviction or sentence through
a habeas corpus petition pursuant to § 2255. She has not identified any other gap in the statutory
framework for post-conviction relief. Petitioner cannot now seek a writ of error under the All
Writs Act as a means to circumvent AEDPA's requirements.
Petitioner may bring her claims in a subsequent habeas corpus petition pursuant to § 2255.
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Since she has already filed a habeas petition pursuant to § 2255, she must request leave of the
Court of Appeals to file a second or successive petition.
CONCLUSION
For the foregoing reasons, the petition for a writ of error coram nobis 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.
/S/
STERLING1€>fmSON, Jr. \.)
Senior United States District Judge
Dated: Brooklyn, New York
November 30,2011
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