Shue v. United States of America
Filing
26
MEMORANDUM & ORDER denying 14 Motion for Leave to File; denying as moot 14 Motion to Appoint Counsel; denying as moot 17 Motion for Summary Judgment; denying as moot 22 Motion for Summary Judgment. For the foregoing reasons, Shue's Petition for a writ of audita querela (Docket Entry 1) and his motion to reduce his sentence (Docket Entry 14) are DENIED. Shue's motions for the appointment of a public defender (Docket Entry 14) and for this Court to render a decision on his Petition (Docket Entries 17, 22) are consequently DENIED AS MOOT. The Court certifies that 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 t he purpose of any appeal. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to pro se Petitioner and mark this case CLOSED. The Clerk of the Court is also directed to docket a copy of this Memorandum and Order in Shue's criminal case, United States v. Shue, No. 95-CR-0301 (E.D.N.Y.). So Ordered by Judge Joanna Seybert on 2/24/2015. C/M; C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
PETER SHUE,
Petitioner,
-against-
MEMORANDUM & ORDER
14-CV-2010(JS)(SIL)
UNITED STATES OF AMERICA,
Respondent.
---------------------------------------X
APPEARANCES
For Petitioner:
Peter Shue, pro se
# 45390-053
Fort Dix Federal
Correctional Institution
Inmate Mail/Parcels
P.O. Box 2000
Fort Dix, NJ 08640
For Respondent:
Charles N. Rose, Esq.
United States Attorney’s Office
610 Federal Plaza
Central Islip, NY 11722
SEYBERT, District Judge:
In 1996, after a jury trial before this Court, pro se
petitioner Peter Shue (“Shue”) was convicted of two drug charges
and
a
related
firearm
possession
charge.
principally to 296 months’ imprisonment.
He
was
sentenced
Shue now petitions the
Court for a writ of audita querela vacating his conviction or, in
the alternative, reducing his sentence, based upon the Supreme
Court’s recent holding in Alleyne v. United States, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013).
Petition is DENIED.
For the following reasons, Shue’s
BACKGROUND
On April 23, 1996, Shue was convicted of (1) one count
of conspiracy to distribute and possess with intent to distribute
cocaine, in violation of 21 U.S.C. § 846; (2) one count of
attempted
possession
with
intent
to
distribute
cocaine,
in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii)(II); and (3) one
count
of
possession
trafficking
crime,
in
of
a
firearm
violation
of
in
18
furtherance
U.S.C.
§
of
a
drug
924(c).
On
September 1996, Shue was sentenced principally to 296 months’
imprisonment.
On June 24, 1997, the Second Circuit affirmed Shue’s
conviction, see United States v. Redd, 116 F.3d 1472, 1997 WL
346147 (Table) (2d Cir. 1997), and on November 12, 2009, affirmed
this Court’s order denying Shue’s motion for a new trial pursuant
to Federal Rule of Criminal Procedure 33, see United States v.
Shue, 201 F.3d 433, 1999 WL 1069977 (Table) (2d Cir. 1999).
On January 5, 2001, Shue filed a motion to vacate his
conviction pursuant to 18 U.S.C. § 2255, (see Shue v. United
States, No. 01-CV-0082 (E.D.N.Y.)), which this Court denied on
April 18, 2003 (Docket Entry 38).1
On May 6, 2003, Shue filed a
motion for reconsideration of this Court’s order dismissing his
Section 2255 motion (Docket Entry 39), which this Court denied
The following docket entries are drawn from the docket for
Shue’s Section 2255 motion.
1
2
on June 9, 2003 (Docket Entry 41).
On September 12, 2003, Shue
filed a motion to file an amended petition (Docket Entry 43),
which the Court denied on September 24, 2003 (Docket Entry 45).
On November 20, 2003, Shue filed a letter motion again seeking
reconsideration of the Court’s order denying his Section 2255
motion, which the Court again denied on December 10, 2003.
(Docket Entry 46.)
In January 2004, Shue appealed this Court’s order
denying his Section 2255 motion.
(Docket Entry 47, 52.)
By
mandate dated December 10, 2004, the Second Circuit dismissed
Shue’s appeal on the ground that his Section 2255 motion was
time-barred.
(Docket Entry 61.)
On July 27, 2006, Shue filed a motion to vacate his
conviction pursuant to Federal Rule of Civil Procedure 60(b).
(Docket Entry 62.)
On August 25, 2006, this Court denied Shue’s
motion and, because the motion did not attack the integrity of
the resolution of Shue’s prior Section 2255 motion, the Court
held that Shue had to first obtain leave from the Second Circuit
before proceeding for further habeas relief. (Docket Entry 63.)
The Second Circuit subsequently denied two motions for leave to
file successive Section 2255 motions.
Redd, 735 F.3d 88, 90 (2d Cir. 2013).
3
See United States v.
On May 21, 2010, Shue commenced a civil action pursuant
to 42 U.S.C. § 1983 against various government employees seeking
“one
hundred
billion
dollars
in
damages
to
compensate
him
for . . . alleged emotional damage” related to his prior
conviction.
Shue v. United States, No. 10-CV-2501, 2010 WL
3613858, at *1 (E.D.N.Y. Sept. 3, 2010) (internal quotation
marks and citation omitted).
On September 3, 2010, this Court
dismissed Shue’s claims, see id., and the Second Circuit later
affirmed, see Shue v. United States, 466 F. App’x 51, 2012 WL
1085865 (Table) (2d Cir. 2012).
Shue then filed a motion before the Second Circuit to
recall its prior mandates and for reinstatement of his direct
appeal.
Shue argued that his sentence was unconstitutional
based on the Supreme Court’s holding in Alleyne that “any fact
that increases the mandatory minimum [sentence] is an ‘element’
that must be submitted to the jury.”
133 S. Ct. at 2155.
Shue
contended that, at his sentencing in 1996, this Court violated
Alleyne’s subsequent holding “by finding the type and quantity of
drugs involved by only a preponderance of the evidence.”
735 F.3d at 90.
Redd,
The Second Circuit construed Shue’s motion as a
successive Section 2255 motion and denied the motion, explaining
that “a new rule is not made retroactive to cases on collateral
review unless the Supreme Court holds it to be retroactive.” Redd,
4
735 F.3d at 91 (internal quotation marks and citation omitted).
Because the Supreme Court announced the new rule in Alleyne on a
direct appeal “without expressly holding it to be retroactive to
cases on collateral review,” Redd, 735 F.3d at 91, the Second
Circuit denied Shue’s Section 2255 motion, id. at 91-92.
On March 24, 2014, Shue filed the instant Petition
seeking a writ of coram nobis pursuant to 28 U.S.C. § 1651(a).
On
April 30, 2014, Shue filed a motion requesting that this Court
consider the Petition as one seeking a writ of audita querela and
not a writ of coram nobis.
(Docket Entry 7.)
On August 6, 2014,
Shue filed a motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582, as well as for the appointment of a “public defender” on
August 6, 2014.
(Docket Entry 14.)
On August 20, 2014 and October
1, 2014, Shue then filed two motions for this Court to render a
decision on his Petition.
(Docket Entries 17, 22.)
Most recently, on November 4, 2014, Tracey E. Gaffey, an
attorney from the Federal Defenders of New York, Inc., filed a
motion on Shue’s behalf in his criminal case requesting that the
Court assign Federal Defenders to represent him for the purpose of
determining whether he is eligible for re-sentencing based on a
recent amendment to the Federal Sentencing Guidelines. (See Docket
Entry 204 in United States v. Shue, 95-CR-0301 (E.D.N.Y.).)
By
Electronic Order dated November 6, 2014, the Court granted Ms.
Gaffey’s motion and appointed her as Shue’s counsel.
5
On February
23, 2015, Ms. Gaffey filed a motion to reduce Shue’s sentence based
on Amendment 782 to the Sentencing Guidelines.
(Docket Entry 205
in United States v. Shue, 95-CR-0301 (E.D.N.Y.).)
has not yet responded to that motion.
The Government
This Memorandum and Order
pertains only to Shue’s Petition seeking a writ of audita querela
and his motion to reduce his sentence based on the Supreme Court’s
decision in Alleyne.
The Court will address the motion to reduce
that Ms. Gaffey filed in Shue’s criminal case at a later date after
the Government has had an opportunity to respond and the motion is
fully briefed.
DISCUSSION
As noted, Petitioner originally filed his Petition as
one seeking a writ of coram nobis.
However, coram nobis “is
essentially a remedy of last resort for petitioners who are no
longer in custody pursuant to a criminal conviction and therefore
cannot pursue direct review or collateral relief by means of a
writ of habeas corpus.”
89-90 (2d Cir. 1998).
Fleming v. United States, 146 F.3d 88,
Petitioner is still serving his sentence.
Accordingly, the Court construes the Petition as one seeking a
writ of audita querela.
A writ of audita querela “is probably available where
there is a legal, as contrasted with an equitable, objection to a
conviction that has arisen subsequent to the conviction and that
is not redressable pursuant to another post-conviction remedy.”
6
United
States
v.
Richter,
510
F.3d
103,
104
(2d
(internal quotation marks and citation omitted).
Cir.
2007)
A court should
deny a petition for a writ of audita querela if “[n]othing has
occurred subsequent to the conviction that remotely creates a legal
objection to the conviction.”
United States v. LaPlante, 57 F.3d
252, 253 (2d Cir. 1995).
Here, Shue again seeks a review of his federal conviction
based on the new rule set forth in Alleyne.
However, as the Second
Circuit previously held in denying Shue’s motion to recall the
Second Circuit’s prior mandates, “Alleyne did not announce a new
rule of law made retroactive on collateral review.”
F.3d
at
92.
Accordingly,
since
Alleyne
does
Redd, 735
not
apply
retroactively to cases on collateral review, there is “no colorable
claim of a constitutional violation, and, hence, the absence of
other avenues of collateral attack does not give rise to serious
constitutional questions.”
Richter, 510 F.3d at 104.
writ of audita querela does not lie.”
Thus, “a
Id.; accord Mora v. United
States, 358 F. App’x 223, 224 (2d Cir. 2009) (affirming district
court’s order denying a petition for a writ of audita querela where
the change in the law did not apply retroactively to cases on
collateral review).
Accordingly, Shue’s Petition for a writ of
audita querela and his motion to reduce his sentence are DENIED.
Shue’s other motions are consequently DENIED AS MOOT.
7
CONCLUSION
For the foregoing reasons, Shue’s Petition for a writ of
audita querela (Docket Entry 1) and his motion to reduce his
sentence (Docket Entry 14) are DENIED.
Shue’s motions for the
appointment of a public defender (Docket Entry 14) and for this
Court to render a decision on his Petition (Docket Entries 17, 22)
are consequently DENIED AS MOOT.
The
Court
certifies
that
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 any appeal.
See Coppedge v. United States, 369
U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to pro se Petitioner and mark this case
CLOSED.
The Clerk of the Court is also directed to docket a copy
of this Memorandum and Order in Shue’s criminal case, United States
v. Shue, No. 95-CR-0301 (E.D.N.Y.).
SO ORDERED.
Dated:
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
February
24 , 2015
Central Islip, NY
8
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