Santiago-Lugo v. United States of America, No. 3:2011cv01363 - Document 11 (D.P.R. 2011)

Court Description: OPINION AND ORDER DENYING 1 Petitioner's motion for a writ of error coram nobis or, in the alternative, a writ of audita querela, filed by Israel Santiago-Lugo. Signed by Judge Jose A Fuste on 5/20/2011.(mrj)

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1 2 3 UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO ISRAEL SANTIAGO-LUGO, 4 Petitioner, 5 v. 6 7 8 Civil No. 11-1363 (JAF) (Crim. No. 95-029-1) UNITED STATES OF AMERICA, Respondent. OPINION AND ORDER 9 Petitioner, Israel Santiago-Lugo, comes before us with the latest in a long line of motions 10 for post-conviction relief. He styles his petition as one for a writ of error coram nobis or, in the 11 alternative, a writ of audita querela. (Docket No. 1.) 12 I. 13 Factual and Procedural Summary 14 In 1996, Petitioner was convicted of engaging in a continuing criminal enterprise the 15 distribution of narcotics throughout Northern Puerto Rico over a seven-year period in 16 violation of 18 U.S.C. § 2 and 21 U.S.C. § 848, for which he received a life sentence. He was 17 also convicted of an additional forty-one counts, for which he received concurrent ten-year 18 sentences as to each count, and two counts of forfeiture under 18 U.S.C. § 982 and 21 U.S.C. 19 § 853. Following his unsuccessful direct appeal, United States v. Santiago-Lugo, 167 F.3d 81 20 (1st Cir. 1999), Petitioner filed his first motion for relief under 28 U.S.C. § 2255. (Case No. 99- 21 1504, Docket No. 2.) We denied this motion. (Id., Docket No. 24.) Petitioner subsequently Civil No. 11-1363 (JAF) -2- 1 filed multiple motions for reconsideration, appeals of our denials, and motions for certificates 2 of appeal. 3 Petitioner now brings three claims under the extraordinary common law writs of error 4 coram nobis and audita querela. He asserts procedural error at sentencing, insufficient 5 evidence, and illegality of the forfeiture of his assets. 6 II. 7 Standards for Relief Under Coram Nobis and Audita Querela 8 A. Writ of Error Coram Nobis 9 Federal courts are empowered by the All Writs Act, 28 U.S.C. § 1651, to issue an array 10 of common law writs, like error coram nobis and audita querela, that are not otherwise codified. 11 Trenkler v. United States, 536 F.3d 85, 97 (1st Cir. 2008). A writ of error coram nobis, in its 12 modern form, is a vehicle through which a petitioner no longer in federal custody can move a 13 court to correct some patent error affecting the validity or regularity of his criminal 14 conviction. Id. at 90 n.2; see also United States v. Sawyer, 239 F.3d 31, 37 (1st Cir. 2001) 15 ( Unlike a writ of habeas corpus, a writ of coram nobis is issued once the petitioner is no longer 16 in custody. ); United States v. Baptiste, 223 F.3d 188 (3d Cir. 2000) (denying petition for coram 17 nobis because petitioner was still in custody). It is available only to correct fundamental 18 errors of law or fact. United States v. Denedo, 129 S. Ct. 2213, 2220 (2009). The Supreme 19 Court notes that it is difficult to conceive of a situation in a federal criminal case today where 20 [a writ of coram nobis] would be necessary or appropriate. Carlisle v. United States, 517 U.S. 21 416, 429 (1996) (quoting United States v. Smith, 331 U.S. 469, 475 n.4 (1947)). Generally, the 22 scope of relief available to a coram nobis petitioner mirrors that available under 28 U.S.C. § Civil No. 11-1363 (JAF) -3- 1 2255. Howard v. United States, 962 F.2d 651, 653 (7th Cir. 1992); United States v. Ayala, 894 2 F.2d 425, 429 n.7 (D.C. Cir. 1990). 3 An extraordinary common law writ such as coram nobis is available only to the extent 4 it fills a gap in the post-conviction remedial scheme created by § 2255. Trenkler, 536 F.3d at 5 97. If a petition for coram nobis falls within the substantive scope of § 2255, then we must 6 recharacterize it as a § 2255 petition. Id. The First Circuit has cautioned, however, that a 7 petitioner s failure to comply with the gatekeeping mechanisms imposed by the Anti-Terrorism 8 and Effective Death Penalty Act ( AEDPA ), Pub. L. No. 104-132, 110 Stat. 1214 (1996), will 9 not justify granting coram nobis relief for a claim otherwise cognizable under § 2255. Id. at 98. 10 B. Writ of Audita Querela 11 The First Circuit has yet to expressly hold that the common law writ of audita querela 12 is available to attack a criminal conviction. United States v. Holder, 936 F.2d 1, 5 (1st Cir. 13 1991). Assuming its availability, audita querela may be granted only where there is a legal 14 objection to a conviction, which has arisen subsequent to that conviction, and which is not 15 redressable pursuant to another post-conviction remedy. Id. 16 nobis, audita querela cannot be granted if the relief sought is cognizable under § 2255. See 17 Trenkler, 536 F.3d at 97 98 ( The strictures of section 2255 cannot be sidestepped by the 18 simple expedient of resorting to some more exotic writ. ); United States v. Holt, 417 F.3d 1172, 19 1174 75 (11th Cir. 2005) (holding audita querela cannot be granted where relief is cognizable 20 under § 2255 and noting agreement of the Fourth, Fifth, Seventh, Ninth, Tenth, and D.C. 21 Circuits). Like the writ of error coram Civil No. 11-1363 (JAF) -4- 1 III. 2 Analysis 3 Because Petitioner appears pro se, we construe his pleadings more favorably than we 4 would those drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 5 Nevertheless, Petitioner s pro se status does not excuse him from complying with procedural 6 and substantive law. Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). 7 We lack jurisdiction to consider the merits of two of Petitioner s three claims. His claims 8 of procedural error at sentencing and insufficient evidence for conviction are classic habeas 9 corpus scenario[s], squarely within the heartland carved out by Congress in section 2255. 10 Trenkler, 536 F.3d at 97. Thus we recharacterize these claims as requests for relief under 11 § 2255. As such, they must comply with the limitation on successive petitions set forth in 12 § 2255(h). Petitioner has not yet secured a certification from the court of appeals to pursue a 13 successive petition, and so we must dismiss these claims. §§ 2244; 2255(h). 14 Petitioner s claim arising from forfeiture does not suffer the same infirmity. Section 15 2255 cannot be used to challenge fines or restitution that are part of a final judgment. See 16 Smullen v. United States, 94 F.3d 20, 25 26 (1st Cir. 1996). Because forfeiture, like fines or 17 restitution, is merely a financial penalty and not a physical constraint on liberty, it is not 18 properly challenged on a § 2255 motion. Rodriguez v. United States, No. 95-2322, 1997 U.S. 19 App. LEXIS 35498, at *1 (1st Cir. Dec. 12, 1997). Thus, Petitioner s claim arising from 20 criminal forfeiture need not comply with § 2255(h). But, as we discuss below, this claim is 21 cognizable under neither coram nobis nor audita querela. Civil No. 11-1363 (JAF) -5- 1 Petitioner remains in custody and, therefore, cannot challenge forfeiture through coram 2 nobis. Sawyer, 239 F.3d at 37. His audita querela claim fails, also, because he points to 3 nothing occurring since his conviction that would render his conviction illegal. Holder, 936 4 F.2d at 5. 5 Petitioner argues that the forfeiture is illegal in light of United States v. Santos, 128 S. 6 Ct. 2020 (2008), and the First Circuit s rulings in United States v. Jose, 499 F.3d 105 (1st Cir. 7 2007), and United States v. Heldeman, 402 F.3d 220 (1st Cir. 2005). (Docket No. 1 at 11.) In 8 Santos, the Supreme Court defined proceeds, as used in a money laundering forfeiture statute, 9 18 U.S.C. § 1956(a), to mean profits instead of gross receipts. 128 S. Ct. at 2033 34. The First 10 Circuit later explicitly rejected the application of the Santos ruling to criminal forfeitures under 11 21 U.S.C. § 853, the statute under which Petitioner s assets were forfeited. United States v. 12 Bucci, 582 F.3d 108, 123 24 (1st Cir. 2009). The First Circuit s reasoning in Bucci is equally 13 applicable to 18 U.S.C. § 982, the other forfeiture statute Petitioner was sentenced under. The 14 text of § 982(a)(1) does not contain the term proceeds, which was the subject of the Supreme 15 Court s analysis in Santos. 16 Jose and Heldeman both construe the Supreme Court s decision in United States v. 17 Bajakajian, 524 U.S. 321 (1998), which defined the limits of the Eighth Amendment s 18 proscription of excessive fines as applied to criminal forfeitures. Bajakajian stands for the 19 proposition that a forfeiture violates the Eighth Amendment where it is grossly disproportional 20 to the gravity of the defendant s offense. Id. at 336 37. The First Circuit has distilled a three- 21 factor test to determine whether a fine is grossly disproportional : (1) whether defendant is 22 of the class of people the criminal statute principally targeted; (2) additional penalties authorized Civil No. 11-1363 (JAF) -6- 1 by the legislature or Sentencing Commission; and (3) harm caused by the defendant. Heldeman, 2 402 F.3d at 223 (citing Bajakajian, 524 U.S. at 337 40). In Jose, the First Circuit held that, 3 beyond the Bajakajian grossly disproportional test, courts should also consider whether a 4 forfeiture would deprive a defendant of his livelihood. 499 F.3d at 113. 5 We first apply the three Heldeman factors to the challenged forfeiture and find that 6 forfeiture of $6,000,000 in cash and of various properties, real and personal (see Case No. 95- 7 29, Docket No. 3067-7 (preliminary forfeiture order)) was not grossly disproportional to 8 Petitioner s crime. Petitioner was the leader of a vast continuing criminal enterprise; he was the 9 type of criminal for which 21 U.S.C. § 848 was drafted. The sentence under the U.S. 10 Sentencing Guidelines, given the base offense level of forty-three, was life imprisonment with 11 a fine of up to $4 million. Given the severity of the sentence under the guidelines, the forfeiture 12 in question does not seem excessive when compared to the punishment for the underlying 13 offense. Next, we turn to the harm caused by Petitioner. Over a seven-year period, this 14 enterprise encompassed millions of dollars in sales, which represented myriad kilograms of 15 narcotics, distributed from at least six points in Northern Puerto Rico. To further his business, 16 Petitioner engaged in a deadly turf war with a rival gang. After weighing the three Heldeman 17 factors, we find that the forfeiture in question was not grossly disproportional to Petitioner s 18 crime. 19 Finally, we address Petitioner s argument that the forfeiture violated the Eighth 20 Amendment because it robbed him of his livelihood. Livelihood is defined as [a] means of 21 supporting one s existence, esp. financially. Black s Law Dictionary 1018 (9th ed. 2009). As 22 Petitioner is serving a life sentence and parole has been abolished in the federal system, his Civil No. 11-1363 (JAF) -7- 1 livelihood will be provided for by the federal government for the rest of his natural life. In a 2 recent discussion of the Excessive Fines Clause as applied to forfeitures, the First Circuit noted 3 the high bar for such livelihood arguments but found that it is not inconceivable that a 4 forfeiture could be so onerous as to deprive a defendant of his or her future ability to earn a 5 living, thus implicating the historical concerns underlying the Excessive Fines Clause. United 6 States v. Levesque, 546 F.3d 78, 85 (1st Cir. 2008). Even if the forfeiture here were found to 7 be so onerous, this concern is negated where, as here, Petitioner is serving a life sentence and, 8 thus, has no need for a livelihood.1 9 IV. 10 Conclusion 11 12 For the foregoing reasons, we hereby DENY Petitioner s motion for a writ of error coram nobis or, in the alternative, a writ of audita querela (Docket No. 1). 13 IT IS SO ORDERED. 14 San Juan, Puerto Rico, this 20 th day of May, 2011. 15 16 17 s/José Antonio Fusté JOSE ANTONIO FUSTE U.S. District Judge 1 In Levesque, the First Circuit noted that the Excessive Fines Clause of the Eighth Amendment was taken verbatim from a clause in the English Bill of Rights, which was promulgated in reaction to the assessment of fines by the King s judges that were so impossibly large that defendants could not pay and were forced to remain in jail. 54 F.3d at 84 (citing Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 267, 290 (1989)). In the present case, there can be no concern that the forfeiture has robbed Petitioner of his livelihood to the point of indefinite incarceration, since he is already serving a life sentence.

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