The opinion of the court was delivered by: CURTIN
Michael LaPorta brings the current petition under the All Writs Act, 28 U.S.C. § 1651(a), for a writ of coram nobis and/or a writ of audita querela seeking a modification of his sentence (Item 125).
On June 29, 1993, a jury found petitioner guilty of conspiracy (Count I), mail fraud (Count II) through the use of fire (Count III), and willful destruction of government property (Count IV) through the use of fire (Count V). Petitioner had been charged, along with co-defendant Vincent "Jimmy" Sicurella, with procuring and burning cars in a conspiracy to collect insurance proceeds fraudulently. At trial, the government presented evidence that the defendants conspired to burn a car belonging to Sicurella. The FBI learned of the insurance fraud scheme and mounted a "sting" operation using a government informant, in which a second car was also burned. The second car belonged to the United States government, but the defendants were told that it was owned by the informant's brother-in-law. On September 17, 1993, this court dismissed Count V and affirmed petitioner's conviction on the other four counts. United States v. Sicurella, 834 F. Supp. 621 (W.D.N.Y. 1993).
On November 19, 1993, this court sentenced petitioner to an aggregate term of seventy-two months' imprisonment: twelve months' imprisonment for each of Counts I, II, and IV, running concurrently with each other; and sixty months' imprisonment for Count III, running consecutively to the sentences for Counts I, II, and IV (Item 98, pp. 21-22). The court sentenced Sicurella to an aggregate term of sixty-six months' imprisonment for Counts I - IV (six months for Counts I, II, and IV, running concurrently to each other, and sixty months for Count III, running consecutively to the other counts). The court instructed that Sicurella's sixty-month sentence imposed for Count III was to be served consecutive to a twenty-one-month sentence imposed by Judge Elfvin on June 11, 1993, for an unrelated perjury conviction (Id., pp. 18, 22-23). Thus, Sicurella had a total aggregate sentence of eighty-one months.
The government appealed the court's dismissal of Count V, and the defendants cross-appealed various aspects of their trial and conviction. On December 30, 1994, the Second Circuit affirmed both the judgment of conviction and the order dismissing Count V. United States v. LaPorta, 46 F.3d 152 (2d Cir. 1994). Other than noting in the background section of its decision that this court sentenced LaPorta to seventy-two months' imprisonment, id. at 155, the Second Circuit neither mentioned nor reviewed the computation of petitioner's sentence. Neither defendant challenged the computation of their sentence in their appeal.
On March 14, 1997, Sicurella filed an application for an order vacating and setting aside his sentence due to a subsequent change of the law or, in the alternative, modifying his sentence to a total aggregate term of sixty-six months, to run concurrently with the twenty-one-month perjury sentence (Item 100). On February 21, 1998, this court denied Sicurella's motion to vacate his sentence, yet granted Sicurella's motion to modify his sentence (Item 114). The court found that the mandatory consecutive sentencing provision of 18 U.S.C. § 844(h) does not apply to arson offenses; therefore, the court declined to run the sixty-month sentence for Count III consecutive to either the sentences for Counts I, II, and IV, or the unrelated perjury sentence. The court therefore reduced Sicurella's sentence to a total aggregate term of sixty months. On March 17, 1998, this court denied the government's motion for reconsideration (Item 123), and sometime soon thereafter Sicurella was released from prison. The government has appealed this court's order modifying Sicurella's sentence (Item 124).
Upon learning of Sicurella's success, on April 23, 1998, LaPorta filed his motion for relief pursuant to a writ of coram nobis and/or a writ of audita querela (Item 125). Petitioner seeks a modification of his sentence to a total of sixty months for the same reasons the court modified Sicurella's sentence. He argues that the court's recent decision that the mandatory consecutive sentencing provision of 18 U.S.C. § 844(h) does not apply to arson offenses applies equally to his sentence; therefore, the court should now modify his sentence such that the sixty-month sentence for Count III runs concurrent with the twelve-month sentences for Counts I, II, and IV. Petitioner also contends that he should receive credit for the fifteen-plus months he spent in jail after Judge Arcara held petitioner in contempt for failing to testify before the grand jury about matters related to substantially the same claims.
The government submits that although petitioner has taken great pains to avoid calling his application a motion brought pursuant to 28 U.S.C. § 2255, petitioner is in fact seeking relief that would only be available to him under section 2255 (Item 127). The government contends that petitioner is barred by the statute of limitations for motions brought under section 2255, and that he is not entitled to relief pursuant to any of the common law writs.
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 language is very broad and includes nearly any challenge to the validity or the calculation of a sentence. Petitioner claims that the court failed to properly calculate the appropriate sentence based on its misapprehension of its authority to run the sentences concurrently; and therefore, his seventy-two-month aggregate sentence is excessive. This challenge is a claim that his sentence is "otherwise subject to collateral attack;" consequently, section 2255 applies.
"Until 1996, a federal prisoner was allowed to file an initial application challenging his sentence on federal grounds 'at any time.'" Mickens v. United States, 148 F.3d 145, 1998 WL 350078, at *1 (2d Cir. 1998). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed a one-year limitations period on ...