The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge
MEMORANDUM OPINION AND ORDER
Petitioner pro se William Mora, currently incarcerated at the United States Penitentiary in Inez, Kentucky, moves for a writ of audita querela or, in the alternative, a writ of error coram nobis in order to attack his sentence collaterally.*fn1
Following a fourteen week jury trial, petitioner was convicted of 42 counts*fn2 including racketeering ("RICO"), murder in aid of racketeering, and operating a continuing criminal enterprise ("CCE") and was sentenced to multiple terms of life imprisonment in addition to statutorily mandated consecutive terms, amounting effectively to life plus 145 years in prison. Petitioner now claims that he is entitled to a reduction in his sentence pursuant to United States v. Booker, 543 U.S. 220 (2005). For the reasons set forth below, petitioner's motion is denied.
The following facts are essentially undisputed. They are taken from the trial and appellate record in the case that led to petitioner's conviction as well as from the parties' submissions in connection with the petition.
Petitioner, together with his brother David Mora, Leo Contrera, Jose Vega, and Love Brooks, was convicted in the Fall of 1995 of participating in the Mora brothers' crack distribution gang (the "Mora gang" or the "gang") in Brooklyn, New York. The trial detailed ten years of crack dealing by the Mora gang and the violence used by the gang in its attempt to maintain its territory. The prosecution presented the testimony of more than 70 witnesses, including eleven former members of the Mora gang, several cooperating witnesses, victim witnesses and numerous law enforcement witnesses. The prosecution also introduced scores of documents, photographs, and other physical evidence in order to convince the jury of petitioner's guilt beyond a reasonable doubt.
A jury convicted petitioner of forty-two counts charged in his indictment (petitioner was acquitted of one count), several of which were of particular significance at sentencing. Counts 31 (using and carrying a destructive device during and in relation to a crime of violence) and 51 (use of a machine gun) carried mandatory life terms of incarceration, consecutive to each other and to all other counts. Counts 20, 22, 26, 28, 35, and 43 (use of a firearm during and in relation to a crime of violence) carried mandatory consecutive 20-year terms. The United States Sentencing Guidelines (the "USSG") calculation resulted in an adjusted offense level of 53, (see PSR ¶ 327), which requires life imprisonment. Accordingly, on counts 1 (RICO), 2 (RICO conspiracy), 9, 19 and 34 (murder in aid of racketeering), 44 (narcotics conspiracy), 45 (CCE), and 48 and 49 (distribution of narcotics near a schoolyard), Mora was sentenced to life imprisonment and received consecutive life terms under counts 31 and 51 as well as lesser sentences on the remaining counts. (See Sent. Tr. at 35-38.)
Subsequently, petitioner, together with his co-defendants, appealed his conviction. Petitioner argued that the evidence was legally insufficient, that the prosecution engaged in misconduct, that federal jurisdiction was lacking on certain counts under the commerce clause, made various evidentiary challenges, and claimed that his conviction for narcotics conspiracy (count 44) must be vacated in light of his CCE conviction (count 45). The Court of Appeals rejected all but the final claim raised and his conviction on count 44 was vacated. See United States v. Mora, 152 F.3d 921, 1998 WL 398802 (2d Cir. June 8, 1998).
Petitioner thereafter filed a petition under 28 U.S.C. § 2255 seeking habeas corpus relief. The petition was denied on October 15, 2001. On July 29, 2002, the Second Circuit denied Petitioner's application for a certificate of appealability.
Petitioner moves for a writ of audita querela or, in the alternative, a writ of error coram nobis in order to attack his sentence collaterally. I address these writs in turn below.
1. Writ of Audita Querela
Audita querela is a "writ available to a judgment debtor who seeks a rehearing of a matter on grounds of newly discovered evidence or newly existing legal defenses." Black's Law Dictionary 141 (8th ed. 2004). "Though formally abolished in civil cases, see Fed. R. Civ. P. 60(b), the writs of error coram nobis and audita querela remain available in very limited circumstances with respect to criminal convictions." United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). The Second Circuit has stated that a writ of audita querela "might be deemed available if [its] existence [were] necessary to avoid serious questions as to the constitutional validity of both § 2255 and § 2244[.]" Triestman v. United States, 124 F.3d 361, 380 n.24 (2d Cir. 1997); see also United States v. Richter, 510 F.3d ...