1The other “authorities” petitioner cites form absolutely no basis for this

court to grant the relief requested.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PAUL MANGIARDI, :

Petitioner, : 4:05-CV-2508

 :

v. :

 : (Judge McClure)

UNITED STATES OF AMERICA, :

Respondent

O R D E R

December 8, 2005

Paul Mangiardi, currently incarcerated at FPC Schuylkill in Minersville, PA,

has filed pro se what this court has construed as a petition for Writ of Habeas

Corpus under 28 U.S.C. § 2241 or common law. Mangiardi’s document is

captioned “Motion 1657 ‘All Writs Act’:; Motion rule 52B, Rule 60 B; Motion

2255 ‘Savings Clause.’” However, his argument as to this court’s authority to grant

relief is limited to the All Writs Act, 28 U.S.C. § 1651.1 A prior motion filed by

Mangiardi under 28 U.S.C. § 2255 was denied. Because Section 2255 is the

presumptive means by which a federal prisoner can challenge his conviction or

sentence, and because Mangiardi has failed to show that Section 2255 is inadequate

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 1 of 7
2

or ineffective to test the legality of his detention, we dismiss the petition. 

BACKGROUND:

A grand jury returned a 16-count superceding indictment against Paul

Mangiardi on September 21, 1995. The indictment stemmed from Mangiardi’s

scheme to market health benefit plans through several companies he created,

controlled, and operated. Mangiardi represented the plans to be fully-funded selfinsured trusts with backup coverage for claims exceeding premium contributions. 

However, Mangiardi failed to secure either reinsurance or stop-loss coverage, and

he did not have the funds to compensate claimants. Eventually, policy beneficiaries

were left with substantial unpaid claims.

At the close of a four-week trial (the second of two trials after the first was

declared a mistrial), the jury returned a verdict of guilty against Mangiardi on all

counts of the superceding indictment. Mangiardi was sentenced to an aggregate

151 months to be followed by a three-year period of supervised release. The Third

Circuit affirmed the judgment of conviction and sentence, 202 F.3d 255 (Table) (3d

Cir. 1999), and the United States Supreme Court denied Mangiardi’s petition for a

writ of certiorari, 529 U.S. 1060 (2000). 

Mangiardi then filed a motion under 28 U.S.C. § 2255 complaining of court

error, prosecutorial misconduct, and ineffective assistance of counsel. On

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 2 of 7
3

November 27, 2001, we denied the motion as to the allegations of court error and

prosecutorial misconduct as lacking merit. (Rec. Doc. No. 650.) We subsequently

held a two-day evidentiary hearing on the ineffective assistance of counsel claim,

and denied the motion as to that allegation on May 3, 2002. (Rec. Doc. No. 680.) 

On December 5, 2005, Mangiardi filed the instant motion with this court,

challenging his sentence and continued detention on the basis of ineffective

assistance of counsel. Mangiardi cites Apprendi v. New Jersey, 530 U.S. 466

(2000), and United States v. Booker, 543 U.S. 220 (2005), to support his petition. 

He also seeks release due to actual innocence under Bousley v. United States, 523

U.S. 614, 623 (1998). 

ANALYSIS: 

A Section 2255 motion is the presumptive means by which a federal prisoner

can challenge his conviction or sentence. See Davis v. United States, 417 U.S.

333, 343 (1974). Section 2255 permits a federal prisoner to challenge his sentence

“upon the ground that [it] was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to impose such

sentence, or that the sentence was in excess of the maximum authorized by law, or

is otherwise subject to collateral attack.” 28 U.S.C. § 2255. This broad language

includes nearly any challenge to the validity or calculation of a sentence. 

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 3 of 7
4

Mangiardi’s first motion under § 2255 was denied. Mangiardi did not file the

current motion under § 2255, and instead argues that his application “must be

considered pursuant to the All Writs Act 28 U.S.C. § 1651 . . . . [because] this

Court has wide latitude under the Act to construct any remedy necessary to achieve

justice.” (Rec. Doc. No. 1, at 21.) 

The All Writs Act provides that “[t]he Supreme Court and all courts

established by Act of Congress may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the usages and principles of law.” 

28 U.S.C. § 1651(a). In Carlisle v. United States, 517 U.S. 416, 429 (1996), the

Supreme Court reiterated 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.” (quoting Penn. Bureau of Corr. v. United States Marshals

Serv., 474 U.S. 34, 43 (1985). 28 U.S.C. § 2255 is the statutory remedy available

to Mangiardi in this case. “The failure to utilize a statutory avenue for postconviction relief is not the situation the Supreme Court had in mind when it stated

that the All Writs Act provides court with the authority to issue writs not otherwise

covered by statute.” United States v. LaPorta, 20 F. Supp. 2d 530, 533

(W.D.N.Y. 1998). 

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 4 of 7
2“A second or successive motion [under § 2255] must be certified as

provided in section 2244 by a panel of the appropriate court of appeals to

contain–(1) newly discovered evidence that, if proven and viewed in light of the

evidence as a whole, would be sufficient to establish by clear and convincing

evidence that no reasonable factfinder would have found the movant guilty of the

5

Whether we construe this petition as one for a common law writ or one

under 28 U.S.C. § 2241, the analysis is the same. The petition will be dismissed

because Mangiardi has not shown that “the remedy by motion is inadequate or

ineffective to test the legality of his detention.” 28 U.S.C. § 2255; Otto v.

Williamson, 140 F. App’x 437, 2005 WL 1995441 (3d Cir. Aug. 19, 2005) (citing

28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249-51 (3d Cir. 1997)). 

“A § 2255 motion is inadequate or ineffective only where the petitioner

demonstrates that some limitation of scope or procedure would prevent a § 2255

proceeding from affording him a full hearing and adjudication of his claims.” 

Cradle v. United States ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). Section

2255 is not inadequate or ineffective merely because a prior motion under § 2255

was unsuccessful or the petitioner is unable to meet the stringent gatekeeping

requirements for filing a second or successive § 2255 motion.2 Okereke v. United

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 5 of 7
offense; or (2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.” 28

U.S.C. § 2255. 

6

States, 307 F.3d 117, 120-21 (3d Cir. 2002). A Section 2255 motion is only

inadequate and ineffective where the denial of a habeas action would raise serious

constitutional issues, see Dorsainvil, 119 F.3d at 249, such as the rare situation

where an intervening change in law makes the crime for which the petitioner was

convicted “non-criminal,” Okereke, 307 F.3d at 120. 

Mangiardi has not shown that a § 2255 motion would be inadequate or

ineffective. He may not circumvent the requirements of a second or successive §

2255 motion by filing under the common law or the All Writs Act. Habeas corpus

petitions brought under § 2241 or the common law are subject to summary

dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the

United States District Courts. See id. at Rule 1(b). “If it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief in the

district court, the judge must dismiss the petition and direct the clerk to notify the

petitioner.” Id. at Rule 4. Furthermore, “[n]o district judge shall be required to

entertain an application for a writ of habeas corpus to inquire into the detention of a

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 6 of 7
7

person pursuant to a judgment of a court of the United States if it appears that the

legality of such detention has been determined by a judge or court of the United

States on a prior application for a writ of habeas corpus, except as provided in

section 2255.” 28 U.S.C. § 2244. Pursuant to these powers, we dismiss the

petition without prejudice. If he chooses, the petitioner may file a motion with the

United States Court of Appeals for the Third Circuit for an order authorizing this

court to consider a second or successive application for relief under 28 U.S.C. §

2255. See 28 U.S.C. §§ 2244, 2255.

IT IS THEREFORE ORDERED THAT:

1. The petition for a writ of habeas corpus is denied, without prejudice.

2. The clerk is directed to close the case file.

________________________

James F. McClure, Jr.

United States District Judge 

 

Case 4:05-cv-02508-JFM Document 2 Filed 12/08/05 Page 7 of 7