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Lesch v. McAvoy


November 25, 2009


The opinion of the court was delivered by: David N. Hurd United States District Judge



Anthony R. Lesch, ("Lesch" or "petitioner"), petitioner, pro se, has filed a petition, together with an application to proceed in forma pauperis . See Dkt. Nos. 1 and 4. Lesch is presently incarcerated at the Federal Correctional Complex in Petersburg, Virginia (Dkt. No. 2 ¶ 1), having entered a plea of guilty to production of child pornography in violation of 18 U.S.C. § 2251(a), in this Court on January 29, 2003. Petitioner agreed to forfeiture of all right, title, and interest in the property seized pursuant to the Preliminary Order of Forfeiture.*fn1 See United States v. Lesch , No. 3:02:-CR-0401(McAvoy, J.), Criminal Minutes: Change of Plea (Dkt. No. 12), Preliminary Order of Forfeiture (Dkt. No. 14), Final Order of Forfeiture (Dkt. No. 21), Criminal Sentencing Minutes (Dkt. No. 31) and Judgment (Dkt. No. 30).*fn2 Petitioner styles this action as a "Petition in Pursuit of the Writ of Prohibition Supported by a Federal Question" challenging the constitutionality of 18 U.S.C. § 3231 and 28 U.S.C. § 2255. Dkt. No. 1. Lesch also states that the petition is filed pursuant to 28 U.S.C. §§ 1331, 1651, and 1653, and Bivens v. Six Unknown Federal Narcotic Agents , 403 U.S. 388, 91 S.Ct. 1999 (1971) and Federal Rule of Civil Procedure 23(a), relating to class actions. The only named respondent is Thomas J. McAvoy, ("Judge McAvoy") a senior judge of this District Court who presided over Lesch's criminal proceeding. In the petition, Lesch seeks to overturn his plea agreement and judgment of conviction, and seeks an order directing his release from a void judgment on the grounds that 18 U.S.C. § 3231, and 28 U.S.C. §§ 2241 and 2255 are unconstitutional and void. In a subsequently filed document entitled "Motion for Supplemental Writ of Prohibition to Protect from the Act of Unclean Hands" petitioner appears to demand essentially the same relief. Dkt. No. 2. For the reasons discussed below, the petition must be dismissed.


As noted above, Lesch entered a guilty plea to the charge of production of child pornography and agreed to forfeiture of the property at issue. He was represented by counsel throughout the criminal proceeding. Petitioner entered a plea on January 29, 2003. The court's minutes reflect that at the time of sentencing Lesch was advised of his constitutional rights and was questioned regarding his background, education, and understanding. Lesch , 3:02-CR-0401(McAvoy, J.), Criminal Minutes: Change of Plea (Dkt. No. 12). Petitioner was advised of the consequences of his plea, and was questioned regarding his willingness to plead guilty, He was advised of the maximum penalties and the proof to be offered if the case were to go to trial. Id. Sentencing took place on August 14, 2003, and the judgment was entered on August 15, 2003. Id. at Dkt. No. 30. On March 2, 2009, plaintiff filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on the grounds, inter alia , that the court lacked jurisdiction. He also filed a document entitled "Motion Submitting a Federal Question Challenging the Constitutionality of 28 U.S.C. § 2255(f).*fn3 Id. at Dkt. No. 43. The United States has opposed Lesch's motion. Id. at Dkt. No. 44. Lesch's section 2255 motion remains pending before Judge McAvoy.


As to petitioner's in forma pauperis ("IFP") application, after careful review of petitioner's IFP application, the Court finds that petitioner qualifies for IFP status. Petitioner's request for permission to proceed in forma pauperis in this action is therefore granted.


Since petitioner meets the financial criteria for commencing this case in forma pauperis , the sufficiency of the allegations set forth in his pleading in light of 28 U.S.C. § 1915(e) will now be considered. Section 1915(e) directs that when a petitioner seeks to proceed in forma pauperis , "(2) . . . the court shall dismiss the case at any time if the court determines that . . . the action . . . (I) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). Thus, the Court has a gate keeping responsibility to determine that a complaint may be properly maintained in this District before it may permit a plaintiff to proceed with an action in forma pauperis . See id.

In deciding whether a complaint states a colorable claim, a court must extend a certain measure of deference towards pro se litigants, Nance v. Kelly , 912 F.2d 605, 606 (2d Cir. 1990) (per curiam), and extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin , 700 F.2d 37, 41 (2d Cir. 1983). There is nonetheless an obligation on the part of the court to determine that a claim is not frivolous before permitting a petitioner to proceed. See Fitzgerald v. First East Seventh St. Tenants Corp ., 221 F.3d 362, 363 (2d Cir. 2000) (District Court may dismiss frivolous complaint sua sponte notwithstanding fact the plaintiff has paid statutory filing fee); Wachtler v. Herkimer County , 35 F.3d 77, 82 (2d Cir. 1994) (District Court has power to dismiss case sua sponte for failure to state a claim). An action is "frivolous" under section 1915 if it lacks an arguable basis either in law or fact. Neitzke v. Williams , 490 U.S. 319, 325, 109 S.Ct. 1827, 1831 (1989). "Legal frivolity . . . occurs where 'the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.'" Aguilar v. United States , No. 3:99-MC-304, 1999 WL 1067841, at * 2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co. , 141 F.3d 434, 437 (2d Cir. 1998)).

In this action, Lesch invokes the All Writs Act, 28 U.S.C. § 1651.*fn4 "The 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." Pa. Bureau of Corr. v. U.S. Marshal Serv. , 474 U.S. 34, 43, 106 S.Ct. 355, 361 (1985).*fn5 A writ under the Act is not available to a petitioner who is in custody and thus able to pursue direct review or collateral relief by means of a writ of habeas corpus. Garcia v. United States , Nos. 97 Civ. 2962, S2 90 Cr. 890, 2009 WL 484435, at * 3 (S.D.N.Y. Feb. 24, 2009). Lesch is in custody and "is challenging the very basis and constitutionality of his conviction, and has addressed his Motion for relief to the sentencing Court. Thus, § 2255 is the appropriate avenue for relief, and the All Writs Act is not applicable." United States v. Smith , No. 92-CR-0262, 2006 WL 3063470, at *2 n.1 (N.D.N.Y. Oct. 25, 2006) (Kahn, J.) (citing Wright v. United States , 202 F. Supp.2d 471, 475 (W.D.N.C. 2002)).

Furthermore, there is no basis for Lesch to have named Judge McAvoy as a respondent in this action. 28 U.S.C. § 2255 provides, in relevant part, that

[a] prisoner in custody under a sentence of a court established by Act of Congress 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, or that the court was without jurisdiction to impose such sentence . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence. 28 U.S.C. § 2255(a). Any request for relief from his conviction is thus appropriately addressed to, and not against, Judge McAvoy.


Lesch has available, and indeed pending in this Court, a motion to vacate his conviction, and therefore is precluded from relying on the All Writs Act to collaterally attack his conviction. In addition, there is no basis for filing this action against Judge McAvoy, the sentencing judge and the judge before whom Lesch's section 2255 motion is pending.

For all of the foregoing reasons, petitioner's action must be dismissed. THEREFORE, it is ORDERED that

1. Petitioner's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED;*fn6

2. The petition is DISMISSED in its entirety; and

3. The Clerk is directed to serve a copy of this Order on the petitioner by regular mail.


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