13-464-cr UNITED STATES v. QUINTIERI



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## AMENDED SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX OR AN**
**ELECTRONIC DATABASE (**  **WITH THE NOTATION “**  **SUMMARY ORDER ”).**  **A PARTY CITING A SUMMARY ORDER MUST** 
**SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .** 
**At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 2 nd** **day of December, two thousand thirteen** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **BARRINGTON D. PARKER,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 **Appellee ,**  13 14 **-v.- 13-464-cr** 15 16 **ERNESTO QUINTIERI,** 17 **Defendant-Appellants**

**.** 18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** ROBERT J. ADINOLFI, LOUIS & 21 ADINOLFI, NEW YORK, New York. 22 23 **FOR APPELLEES:** PETER A. NORLING (with AMY BUSA 24 on the brief), Assistant United 25 States Attorneys, for LORETTA E. 26 LYNCH, United States Attorney 27 for the Eastern District of New 28 York. 29

1Appeal from a judgment of the United States District 1 Court for the Eastern District of New York (Platt, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the judgment of the district court be 5
**AFFIRMED**

. 6 7 Appellant Ernesto Quintieri (“Appellant”) appeals the 8 judgment denying his petition for a writ of audita querela

. 9 We assume the parties’ familiarity with the underlying facts 10 and the procedural history of the case. 11 12 We review de novo a district court’s denial of such a 13 writ. See United States v. Richter , 510 F.3d 103, 104 (2d 14 Cir. 2007) (per curiam ). A writ of audita querelais an 15 extraordinary remedy under the All Writs Act, 28 U.S.C. § 16 1651(a), and is generally available only if “the absence of 17 any avenue of collateral attack would raise serious 18 constitutional questions about the laws limiting those 19 avenues.” Richter , 510 F.3d at 104. The writ is generally 20 not available to review a criminal conviction if the 21 petitioner could have raised his or her claims in a 28 22 U.S.C. § 2255 motion. See id. (“[The writ of audita 23 querela ] is probably available where there is a legal, as 24 contrasted with an equitable, objection to a conviction that 25 has arisen subsequent to the conviction and that is not 26 redressable pursuant to another post-conviction remedy.”) 27 (internal quotation marks omitted); see also United States 28 v. Valdez-Pacheco , 237 F.3d 1077, 1079 (9th Cir. 2001) (per 29 curiam ) (noting that the writ “survive[s] only to the extent 30 that [it] fill[s] ‘gaps’ in the current systems of 31 postconviction relief”). Similarly, “if the absence of any 32 avenue of collateral attack would raise serious 33 constitutional questions about the laws limiting those 34 avenues, then a writ of audita querela would lie.” Richter
, 35 510 F.3d at 104. 36 37 On October 6, 2000, Appellant was sentenced to 366 38 days’ imprisonment based on his guilty plea to one count of 39 knowingly possessing a counterfeit check with the intent to 40 deceive another person, in violation of 18 U.S.C. § 513(a). 41 42 Appellant argues that, at the time of his sentencing, 43 defense counsel failed to advocate for a downward departure 44 to a 364-day sentence (as opposed to the year-and-a-day 45 sentence imposed), so that Appellant, then a lawful 46 permanent resident, would not have been subjected to 47

2automatic removal from the United States for having 1 committed an aggravated felony. 2 3 A claim of ineffective assistance of counsel on the 4 ground that Appellant’s attorney failed to argue for a 5 downward departure and a 364-day sentence was cognizable on 6 direct appeal and under § 2255. It is true, as Appellant 7 points out, that at the time of the sentencing, we had not 8 yet held that an attorney’s failure to inform a client of 9 the deportation consequences of a guilty plea or sentence 10 (rather than affirmative misadvice of those consequences) 11 constitutes ineffective assistance. However, we signaled 12 support for such a claim well within the time period in 13 which Appellant could have brought a § 2255 petition. See 14 United States v. Couto , 311 F.3d 179, 187-88 (2d Cir. 2002) 15 (“[O]n some occasions, we have suggested that an attorney 16 does have a duty to provide that information. . . . 17 Moreover, recent Supreme Court authority supports this 18 broader view of attorney responsibility as well.”) 19 (citations omitted). Therefore, the basis for the present 20 petition was not legally foreclosed during the time period 21 during which he could have brought a § 2255 petition. 1 22

1 Even if it had been foreclosed, the U.S. Supreme Court’s decision in Padilla v. Kentucky , 559 U.S. 356, 130 (2010), holding that the Sixth Amendment requires an attorney for a criminal defendant to provide advice about the risk of deportation arising from a guilty plea, on which Appellant’s claim is ultimately founded, is not afforded retroactive application. Chaidez v. United States , 133 S. Ct. 1103, 1110-11 (2013). Appellant may not employ the writ of audita querelato circumvent the retroactivity limitations imposed by Congress and the Supreme Court on postconviction remedies--at least where, as here, Appellant’s claim does not raise serious constitutional questions regarding the validity of § 2244 and § 2255: when a rule of law is “new” such that it is not made retroactive on collateral review, the “true impediment [to bringing that claim under § 2255] is [the new rule] itself, not the remedy by § 2255 motion.” Love v. Menifee , 333 F.3d 69, 74 (2d Cir. 2003) (appellant barred from raising Apprendi challenge). Thus, “[b]ecause the section 2255 gatekeeping provisions are not responsible for [Appellant’s] inability to raise his [Padilla -based] claim, there can be no ‘serious constitutional question’ raised by requiring him to proceed under that section.” Id.

3Accordingly, this alleged failure by Appellant’s counsel 1 does not provide a basis for a granting of the writ of 2 audita querela

. 3 4 For the foregoing reasons, and finding no merit in 5 Appellant’s other arguments, we hereby **AFFIRM** the judgment 6 of the district court. 7 8 FOR THE COURT: 9 CATHERINE O’HAGAN WOLFE, CLERK 10 11 12

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