United States District Court, M.D. Pennsylvania
December 8, 2005.
PAUL MANGIARDI, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: JAMES McCLURE Jr., District Judge
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.*fn1 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 or ineffective to test the legality of his detention, we dismiss
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 self-insured 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 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).
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. 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 post-conviction 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). 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.*fn2 Okereke v. United 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 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.
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