IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

MANUEL GARCIA,

 

 Petitioner,

v.

UNITED STATES OF AMERICA,

 Respondent.

HONORABLE JEROME B. SIMANDLE

Civ. No. 97-2861 (JBS) 

[Crim. No. 93-536-03 (JBS)]

MEMORANDUM OPINION

SIMANDLE, District Judge:

This matter comes before the Court on Petitioner Manuel

Garcia’s motion, pursuant to 28 U.S.C. § 2255, Fed. R. Civ. P.

60(b) and “The All Writs Act,” 28 U.S.C. § 1651, to reopen and

supplement a previously unsuccessful motion to vacate his

sentence. The Court has considered the submissions of the

Petitioner in support thereof [Docket Item No. 23] and the

Government’s response requesting that the Court dismiss the

motion for lack of jurisdiction [Docket Item No. 25]. For the

following reasons, Petitioner’s motion, construed as a successive

petition for a writ of habeas corpus under § 2255, will be

dismissed without prejudice for lack of jurisdiction. The Court

finds as follows:

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1. Following a jury trial before this Court on September 29,

1994, Petitioner was convicted of using interstate commerce

facilities to commit a murder for hire, in violation of 18 U.S.C

§ 1958, and was sentenced to life imprisonment on October 4,

1994. United States v. Garcia, No. 94-5647 (D.N.J. October 4,

1994). Petitioner appealed, and the Third Circuit Court of

Appeals affirmed his conviction on July 29, 1996. United States

v. Garcia, No. 94-5647 (3d. Cir. July 29, 1996).

2. Petitioner filed his initial petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2255 on June 2, 1997 in

this Court. Garcia v. United States, No. 97-cv-2861 (D.N.J. June

2, 1997). The Court denied his petition in an opinion issued on

July 29, 1998. Garcia v. United States, No. 97-cv-2861 (D.N.J.

JuLY 29, 1998). On August 7, 1998, Petitioner sought to appeal

that ruling, but the Court denied his request for a Certificate

of Appealability on September 15, 1998. Garcia v. United States,

No. 97-cv-2861 (D.N.J. September 15, 1998) Subsequently, on June

4, 1999, the Court of Appeals also denied Petitioner’s request

for a Certificate of Appealablity. Garcia v. United States, No.

97-cv-2861 (3d Cir. June 4, 1999). 

3. On June 27, 2005, Petitioner filed his second § 2255

motion in this Court, seeking relief under Fed. R. Civ. P. 15,

Fed. R. Civ. P. 60(b), Apprendi v. New Jersey, 530 U.S. 466

(2000), Blakely v. Washington, 542 U.S. 296 (2004), and United

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 The Government was not served with a copy of Petitioner’s 1

motion until October 9, 2007. (Def.’s Resp. at 2.)

3

States v. Booker, 543 U.S. 220 (2005). That motion was denied by

this Court on July 22, 2005, Garcia v. United States, No. 97-cv2861 (D.N.J. July 22, 2005), as being untimely and Petitioner did

not seek further review.

4. On April 17, 2007, Petitioner filed the present motion to

reopen and supplement his originally-filed petition for habeas

corpus and to vacate his sentence pursuant to 28 U.S.C. § 2255,

Fed. R. Civ. P. 60(b) and “The All Writs Act,” 28 U.S.C. § 1651. 

In this motion, Petitioner asserts what he refers to as a claim

of “actual innocence,” arguing that although he “did conspire[]

with others to murder Mr. Cohen, [ ] he did not aid or assist in

the preparations for carrying out the murder plan.” (Pet’r. Mot.

at 23-24.) He also makes a Sixth Amendment claim that the jury

rendered an unconstitutional general verdict and sentenced him

for “a congressionally defined aggravated offense which was never

proven beyond a reasonable doubt.” (Pet’r. Mot. at 21-22.) 

5. The Government responded to the motion on October 12,

2007. [Docket Item No. 25]. In its response, the Government 1

argues Petitioner’s motion should be dismissed for lack of

jurisdiction because Petitioner has not received authorization

from the Third Circuit to file a second or successive motion as

required by 28 U.S.C. § 2255. (Def.’s Resp. at 5.)

6. 28 U.S.C. § 2255(a) (2000) provides that a federal

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prisoner “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.” That

court shall then grant the petitioner a hearing “[u]nless the

motion and the files and records of the case conclusively show

that the prisoner is entitled to no relief.” Id. While it is

within the discretion of the district court whether to order a

hearing, United States v. Day, 969 F.2d 39, 41 (3d Cir. 1992),

“in exercising that discretion the court must accept the truth of

the movant’s factual allegations unless they are clearly

frivolous on the basis of the existing record.” Id. at 42

(citing V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). The

district court will correct a defendant’s sentence if it finds

“that the judgment was rendered without jurisdiction, or that the

sentence imposed was not authorized by law or otherwise open to

collateral attack, or that there has been such a denial or

infringement of the constitutional rights of the prisoner as to

render the judgment vulnerable to collateral attack.” 28 U.S.C.

§ 2255. The petitioner however, bears the ultimate burden of

proving that his conviction is illegal. United States v. Hollis,

569 F.2d 199, 205 (3d Cir. 1977).

6. Although Petitioner has asserted three bases for vacating

his sentence, (namely, § 2255, Fed. R. Civ. P. 60(b), and the

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 The Petitioner seeks to invoke both the common law writ of 2

audita querela (Pet’r. Mot. at 5) and the common law writ of

coram nobis. (Id. at 6, n.4). Although formally abolished in

civil cases by Fed. R. Civ. P 60(b), both remain available for

use in criminal cases in limited circumstances. United States v.

LaPlante, 57 F.3d 253, 253 (2d Cir. 1995). The writ of audita

querela is available for a collateral attack when “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.” Id. 

The writ of coram nobis is “an extraordinary remedy . . .

generally sought to review a criminal conviction where a motion

under 28 U.S.C. is unavailable.” Porcelli v. United States, 404

F.3d 157, 158 (2d Cir. 2005).

5

“All Writs Act,” 28 U.S.C. § 1651), the only avenue available to

him under the case’s current procedural posture is a habeas

application pursuant to § 2255. As Petitioner is proceeding pro

se, the Court will hold Petitioner to a less stringent standard

of pleading than the standards applicable to trained attorneys. 

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Royce v. Hahn, 151

F.3d 116, 118 (3d Cir. 1998). The Court will therefore construe

Petitioner’s petition liberally, interpreting it as a motion to

vacate his sentence under § 2255, because relief under both Rule

60(b) and the All Writs Act is unavailable for a successive § 2

2255 petition. See In re Wagner, 421 F.3d 275, 277 (3d Cir.

2005) (“although it was labeled as a motion under Fed. R. Civ. P.

60(b)(6), it was in substance a motion under 28 U.S.C. § 2255.”);

Farris v. United States, 333 F.3d 1211, 1216 (11th Cir. 2003)

(holding that motion for reconsideration under Fed. R. Civ. P.

60(b) was properly construed as successive § 2255 petition); see

also Obado v. New Jersey, 328 F.3d 716 (3d Cir. 2003)

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(prohibiting writ of coram nobis to be used to avoid AEDPA’s

gate-keeping requirements); United States v. Baptiste, 223 F.3d

188, 189 (3d Cir. 1989) (stating that coram nobis relief is only

available to individuals not in custody); Shelton v. United

States, 2006 WL 2917553, *1 (3d Cir. 2006) (stating that writ of

audita querela “cannot be invoked in order to enable a defendant

to file a § 2255 claim, but avoid complying with the rules that

govern such motions”).

7. A petitioner may file a second or successive habeas

motion pursuant to § 2255, but that petition is subject to the

strict limitations imposed by The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). A second or successive

motion may be brought only after a panel of the appropriate court

of appeals certifies that it contains: (1) newly discovered

evidence or (2) a new rule of constitutional law made retroactive

by the Supreme Court to collateral review cases. 28 U.S.C. §

2255 (h). Petitioner has not received authorization from the

Third Circuit to file his successive § 2255 motion.

8. Without the required authorization from the Court of

Appeals, this Court lacks the subject matter jurisdiction

necessary to consider Petitioner’s motion. Robinson v. Johnson,

313 F.3d 128, 138 (3d Cir. 2002) (holding that “most courts that

have considered the issue treat the successiveness issue as

comparable to the defense that the court lacks jurisdiction over

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the subject matter”). Therefore, the Court must use its

discretion in choosing whether to dismiss the motion or transfer

it to the Third Circuit pursuant to 28 U.S.C. § 1631. Id. at 139

(noting that when a “second or successive habeas petition is

erroneously filed in a district court without the permission of a

court of appeals, the district court’s only option is to dismiss

the petition or transfer it to the court of appeals”). 

9. If Petitioner’s motion were transferred to the Third

Circuit, precedent would require it to be denied. Petitioner’s

argument that he is entitled to habeas relief based on a claim of

“actual innocence,” due to the fact that he withdrew from the

murder conspiracy, is without merit. Even if he was not

physically present at the scene of the murder, by Petitioner’s

own admission he conspired in the murder for hire plot. (Pet’r.

Mot. at 23-24.) Withdrawal from a conspiracy is not a defense

absolving a defendant from liability, because the crime of

conspiracy “is in the agreement, not in the achievement of its

criminal end.” United States v. Kushner, 305 F.3d 194, 198 (3d

Cir. 2002). See United States v. Rogers, 102 F.3d 641, 644 (1st

Cir. 1996 (withdrawal is not a defense to a crime that has been

completed). Therefore, this claim provides no basis for finding

that Petitioner’s sentence is unlawful. Cf. 28 U.S.C. § 2255(a).

10. Additionally, by arguing that he is entitled to relief

because he was sentenced for an aggravated offense that was never

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 Petitioner previously presented a similar claim in his second § 3

2255 motion, which was denied. (Pet’r. Mot. at 6-7).

proven beyond a reasonable doubt, Petitioner is essentially

arguing that he was denied his Sixth Amendment right to a jury

finding regarding facts that increase the statutory maximum

penalty as described in Apprendi and Booker. However, it is 3

well established that such claims based on new rules of law do

not apply retroactively to cases on collateral review that became

final before those decisions. See United States v. Olopade, 403

F.3d 159 (3d. Cir. 2005) (holding that Booker fails to supply

petitioners seeking permission to file second or successive §

2255 motions with the required evidence of a “new rule of

constitutional law, made retroactive to cases on collateral

review”); In re Turner, 267 F.3d 225, 230 (3d Cir. 2001) (holding

that Apprendi claims are not cognizable in successive § 2255

motions). As noted supra, Petitioner’s conviction became final

on July 29, 1996. Apprendi and Booker were decided on June 26,

2000 and January 12, 2005, respectively. Apprendi and Booker

therefore do not apply retroactively to Petitioner’s claims on

collateral review because his case became final before those

decisions were rendered. This Court therefore may not entertain

his motion for collateral relief. However, In re Olopade makes

clear that a court denying a petitioner’s request for leave to

file a successive habeas motion should do so without prejudice in

case “the Supreme Court subsequently makes Booker retroactive to

cases on collateral review.” 403 F.3d at 164. 

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11. For the foregoing reasons, Petitioner’s § 2255 motion is

dismissed without prejudice for lack of jurisdiction to entertain

the motion. 

April 9, 2008 s/ Jerome B. Simandle 

DATE JEROME B. SIMANDLE

U.S. District Judge

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