Dent v. United States of America
DECISION AND ORDER. The instant petition is denied. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). The Court cer tifies 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 the purpose of an appeal. Ordered by Judge Brian M. Cogan on 10/30/2013. C/M with unpublished decisions by chambers. Forwarded for judgment. (Siegfried, Evan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against UNITED STATES OF AMERICA,
DECISION AND ORDER
13 Civ. 5937 (BMC)
COGAN, District Judge.
Petitioner has filed this pro se petition, purportedly for a writ of error coram nobis under
28 U.S.C.A. § 1651, the All Writs Act. This petition is mischaracterized as seeking a writ of
error coram nobis. It is actually a second or successive habeas corpus petition. Because the
Second Circuit has already denied petitioner’s motion for leave to file a second or successive
habeas corpus proceeding, the instant petition is denied.
This is petitioner’s fourth petition challenging his December 8, 2003 conviction. See
Dent v. United States, No. 09 Cv. 1938, at ECF No. 32 (Memorandum Decision and Order dated
May 24, 2013 denying petitioner’s habeas petition); Dent v. United States, No. 13-476, at dkt 14
(Order dated March 5, 2013 denying petitioner’s habeas petition because “Petitioner has not
satisfied the criteria set forth in 28 U.S.C. § 2255(h)”); Dent v. United States, No. 09 Cv. 1938,
at ECF No. 26 (Memorandum Decision and Order dated March 18, 2011 denying petitioner’s
habeas petition). In the instant petition, petitioner makes the same argument that he has made in
his prior habeas petitions: that he was tried and convicted on a second superseding indictment
that was never submitted to the grand jury.
The relief that petitioner seeks – the reversal of his December 8, 2003 conviction because
his constitutional rights were violated – is covered by 28 U.S.C. § 2255. See 28 U.S.C. § 2255
(“A prisoner in custody . . . claiming the right to be released upon the ground that the sentence
was imposed in violation of the Constitution or laws of the United States . . . may move the court
which imposed the sentence to vacate, set aside or correct the sentence.”). However, if petitioner
properly characterized the instant motion as a habeas corpus petition under 28 U.S.C. § 2255, it
would be deemed a second or successive motion under 28 U.S.C. § 2255(h). See Vu v. United
States, 648 F.3d 111, 113 (2d Cir. 2011) (noting that to be successive, a “§ 2255 motion must
attack the same judgment that was attacked in the prior motion, and the prior motion must have
been decided on the merits.”) (internal quotation marks and citations omitted). As petitioner is
aware, his successive § 2255 motion has already been denied by the Second Circuit.
Here, it is clear that petitioner realized he could not file another § 2255 motion and so he
called it a petition for a writ of coram nobis instead. The fact that a petitioner is unable to obtain
habeas relief under 28 U.S.C. § 2255 does not mean that he may evade the procedural
restrictions of § 2255 by seeking a writ of coram nobis. See Carlisle v. United States, 517 U.S.
416, 429 (1996) (stating that “[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.”) (internal
quotation marks and citation omitted); Ortiz v. New York, 75 F. App’x 14, 17 (2d Cir. 2003)
(“The fact that [petitioner] cannot actually obtain relief under [28 U.S.C. § 2255] does not
change the result . . . [that] his reliance on coram nobis is merely a transparent attempt to
circumvent the procedural obstacles that barred his § 2255 motion.”); Mora v. United States, No.
11 Cv. 531, 2011 WL 891440, at *2 (E.D.N.Y. Mar. 10, 2011) (“The common law writs may not
be used to circumvent the procedural requirements of [28 U.S.C. § 2255].”).
Accordingly, the instant petition is denied. As petitioner has not made a substantial
showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28
U.S.C. § 2253(c). 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
the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
Digitally signed by Brian M.
Dated: Brooklyn, New York
October 30, 2013
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