13-464-cr

UNITED STATES v. QUINTIERI

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 2nd 4 day of December, two thousand thirteen

5

6 PRESENT: AMALYA L. KEARSE, 

7 DENNIS JACOBS,

8 BARRINGTON D. PARKER,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA, 

13 Appellee,

14

15 -v.- 13-464-cr

16

17 ERNESTO QUINTIERI, 

18 Defendant-Appellants.

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20

21 FOR APPELLANT: ROBERT J. ADINOLFI, LOUIS &

22 ADINOLFI, NEW YORK, New York.

23

24 FOR APPELLEES: PETER A. NORLING (with AMY BUSA

25 on the brief), Assistant United

26 States Attorneys, for LORETTA E.

27 LYNCH, United States Attorney

28 for the Eastern District of New

29 York. 

1
1 Appeal from a judgment of the United States District

2 Court for the Eastern District of New York (Platt, J.).

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the judgment of the district court be

6 AFFIRMED. 

7

8 Appellant Ernesto Quintieri (“Appellant”) appeals the

9 judgment denying his petition for a writ of audita querela. 

10 We assume the parties’ familiarity with the underlying facts

11 and the procedural history of the case.

12

13 We review de novo a district court’s denial of such a

14 writ. See United States v. Richter, 510 F.3d 103, 104 (2d

15 Cir. 2007) (per curiam). A writ of audita querela is an

16 extraordinary remedy under the All Writs Act, 28 U.S.C. §

17 1651(a), and is generally available only if “the absence of

18 any avenue of collateral attack would raise serious

19 constitutional questions about the laws limiting those

20 avenues.” Richter, 510 F.3d at 104. The writ is generally

21 not available to review a criminal conviction if the

22 petitioner could have raised his or her claims in a 28

23 U.S.C. § 2255 motion. See id. (“[The writ of audita

24 querela] is probably available where there is a legal, as

25 contrasted with an equitable, objection to a conviction that

26 has arisen subsequent to the conviction and that is not

27 redressable pursuant to another post-conviction remedy.”)

28 (internal quotation marks omitted); see also United States

29 v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) (per

30 curiam) (noting that the writ “survive[s] only to the extent

31 that [it] fill[s] ‘gaps’ in the current systems of

32 postconviction relief”). Similarly, “if the absence of any

33 avenue of collateral attack would raise serious

34 constitutional questions about the laws limiting those

35 avenues, then a writ of audita querela would lie.” Richter,

36 510 F.3d at 104.

37

38 On October 6, 2000, Appellant was sentenced to 366

39 days’ imprisonment based on his guilty plea to one count of

40 knowingly possessing a counterfeit check with the intent to

41 deceive another person, in violation of 18 U.S.C. § 513(a). 

42

43 Appellant argues that, at the time of his sentencing,

44 defense counsel failed to advocate for a downward departure

45 to a 364-day sentence (as opposed to the year-and-a-day

46 sentence imposed), so that Appellant, then a lawful

47 permanent resident, would not have been subjected to

2
1 automatic removal from the United States for having

2 committed an aggravated felony. 

3

4 A claim of ineffective assistance of counsel on the

5 ground that Appellant’s attorney failed to argue for a

6 downward departure and a 364-day sentence was cognizable on

7 direct appeal and under § 2255. It is true, as Appellant

8 points out, that at the time of the sentencing, we had not

9 yet held that an attorney’s failure to inform a client of

10 the deportation consequences of a guilty plea or sentence

11 (rather than affirmative misadvice of those consequences)

12 constitutes ineffective assistance. However, we signaled

13 support for such a claim well within the time period in

14 which Appellant could have brought a § 2255 petition. See

15 United States v. Couto, 311 F.3d 179, 187-88 (2d Cir. 2002)

16 (“[O]n some occasions, we have suggested that an attorney

17 does have a duty to provide that information. . . . 

18 Moreover, recent Supreme Court authority supports this

19 broader view of attorney responsibility as well.”)

20 (citations omitted). Therefore, the basis for the present

21 petition was not legally foreclosed during the time period

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 querela to 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.

3
1 Accordingly, this alleged failure by Appellant’s counsel

2 does not provide a basis for a granting of the writ of

3 audita querela.

4

5 For the foregoing reasons, and finding no merit in

6 Appellant’s other arguments, we hereby AFFIRM the judgment

7 of the district court.

8

9 FOR THE COURT:

10 CATHERINE O’HAGAN WOLFE, CLERK

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