Del Rio v. United States of America
| Eduardo Del Rio |
| United States of America |
| 1:2021cv20671 |
| February 17, 2021 |
| US District Court for the Southern District of Florida |
| Lauren Fleischer Louis |
| K Michael Moore |
| Mandamus & Other |
| 28 U.S.C. ยง 1651 |
| None |
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Filing 11
PAPERLESS ORDER. THIS CAUSE came before the Court upon Petitioner's Motion for Reconsideration. #10 . Therein, Petitioner requests that the Court reconsider its March 29, 2021 Order 9 denying Petitioner's Amended Motion (Complaint) for Writ of Error Coram Nobis. Id. at 1. Specifically, Petitioner argues that he should have been given an opportunity to present evidence on his claims because due process "is a catch-all provision deeply rooted in the administration of American Justice" and "[i]t is legally well established that ineffective assistance of counsel violates due process." Id. Further, Petitioner argues that he should have "the opportunity to offer supporting evidence" under Haines v. Kerner, 404 U.S. 519 (1972). Id. Petitioner points to the portions of Haines, which held that pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers," and "allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence." Id. (quoting Haines, 404 U.S. at 520521). "Reconsideration is an extraordinary remedy to be employed sparingly." Holland v. Florida, No. 06-20182-CIV-SEITZ, 2007 WL 9705926, at *1 (S.D. Fla. June 26, 2007) (internal quotation marks and citation omitted). "The only grounds for granting a motion for reconsideration 'are newly-discovered evidence or manifest errors of law or fact.'" United States v. Dean, No. 20-11603, 2020 WL 7655426, at *2 (11th Cir. Dec. 23, 2020) (quoting Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007) (per curiam)). "A motion for reconsideration 'cannot be used to relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment.'" Id. (quoting King, 500 F.3d at 1343). "A party's disagreement with the court's decision, absent a showing of manifest error, is not sufficient to demonstrate entitlement to relief." Id. (citing Jacobs v. Tempur-Pedic Int'l, Inc., 626 F.3d 1327, 1344 (11th Cir. 2010)). Here, the Court declines to disturb its Order denying Petitioner's Motion 9 . None of Petitioner's arguments in his Motion for Reconsideration address why his attorneys did not pursue the ineffective assistance of counsel claim in his earlier collateral proceeding under 2255. See United States v. Yadigarov, No. 20-10857, 2021 WL 71624, at *4 (11th Cir. Jan. 8, 2021) (holding that the district court did not abuse its discretion in denying defendant's petition for writ of error coram nobis based on ineffective assistance of counsel, filed after his term of supervised release ended, when such a claim would have properly been raised in a collateral attack on the conviction in a motion to vacate and defendant did not provide sounds reasons for failing to seek appropriate relief before his supervised release term ended); see also Carlisle v. United States, 517 U.S. 416, 429 (1996) ("[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."). Further, Petitioner's reliance on Haines is misplaced because (1) Haines is a case about pleading standards for pro se litigants under Fed. R. Civ. P. 12(b)(6), and (2) even construing Petitioner's Motion for Reconsideration in a light most favorable to Petitioner, he has not put forth newly-discovered evidence or pointed to a manifest error of law or fact. Dean, 2020 WL 7655426, at *2. Therefore, there are no grounds for reconsideration. Id. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Petitioner's Motion for Reconsideration #10 is DENIED. Signed by Chief Judge K. Michael Moore on 4/7/2021. (thn)
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| Filing 10 MOTION for Reconsideration re 9 Order Dismissing Case by Eduardo Del Rio. (ail) |
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Filing 9
PAPERLESS ORDER. THIS CAUSE came before the Court upon pro se Petitioner Eduardo Del Rio's Amended Motion (Complaint) for Writ of Error Coram Nobis ("Amended Petition"). #8 . On March 16, 2021, the Court entered an Order which found that Petitioner (1) was improperly pursuing a claim of ineffective assistance of counsel under the All Writs Act and (2) failed to articulate why these arguments were not raised in his earlier 2255 motion. 6 . In the same Order, the Court (1) instructed Petitioner to re-file his Petition with all the necessary pages, and (2) ordered Petitioner to show cause as to why he could not have raised this claim in his prior 2255 motion. 6 . Now, Petitioner has refiled his motion with all of the necessary pages. #8 at Exhibit A. Additionally, Petitioner explains that the ineffective assistance of counsel claim was not pursued in his 2255 motion because his attorneys "appeared seriously reluctant to attack a colleague on the public record as ineffective" and the theory Petitioner wanted them to pursue was more complicated than those which the attorneys ultimately focused the 2255 motion on. Id. at 23. Petitioner claims the ineffective assistance theory was more complicated because it would have required a "'official' or 'stipulated' transcript.'" Id. at 2. A petition for a writ of coram nobis is an "extraordinary remedy of last resort" and does not provide a petitioner an opportunity to assert claims he neglected to bring in previously available proceedings. See United States v. Yadigarov, No. 20-10857, 2021 WL 71624, at *4 (11th Cir. Jan. 8, 2021). Additionally, the Supreme Court has held that ineffective assistance of counsel claims are properly pursued under 28 U.S.C. 2255. See Carlisle v. United States, 517 U.S. 416, 429 (1996) ("[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."). Here, it remains the case that Petitioner improperly attempts to bring a claim for ineffective assistance of counsel under the All Writs Act. See Am. Pet. at 4; see also Carlisle, 517 U.S. at 429. Petitioner concedes that his attorneys for his 2255 wrote a "compelling motion" and his Amended Petition fails to explain why his attorneys could not have pursued the ineffective assistance claim in his earlier collateral proceeding. See Yadigarov, 2021 WL 71624 at *4 (holding that the district court did not abuse its discretion in denying defendant's petition for writ of error coram nobis based on ineffective assistance of counsel, filed after his term of supervised release ended, when such a claim would have properly been raised in a collateral attack on the conviction in a motion to vacate and defendant did not provide sounds reasons for failing to seek appropriate relief before his supervised release term ended); see also #8 at 2-3. For these reasons, Petitioner has failed to show cause as to why the Amended Petition should not be dismissed as frivolous, as required by the Courts previous Order 6 . Accordingly, UPON CONSIDERATION of the Amended Petition #8 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that Petitioner's Amended Motion (Complaint) for Writ of Error Coram Nobis #8 is DENIED. The Clerk of the Court is instructed to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. Signed by Chief Judge K. Michael Moore on 3/29/2021. (thn)
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| Filing 8 Amended Motion (Complaint) for Writ of Error Coram Nobis (Criminal Case # USDC Southern FL, 97-CR-384-KMM). No fee Required. NOTE: All further docketing is to be done in this civil case, filed by Eduardo Del Rio.(amb) |
| Deadline(s)/Hearing(s) terminated per DE #8 . (amb) |
| Filing 7 Notice of Reassignment of Assistant U.S. Attorney by Yvonne Rodriguez-Schack on behalf of United States of America.. Attorney Yvonne Rodriguez-Schack added to party United States of America(pty:dft). (Rodriguez-Schack, Yvonne) |
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Filing 6
PAPERLESS ORDER. THIS CAUSE came before the Court upon Petitioner's Petition for Writ of Error Coram Nobis. #1 . Therein, Petitioner argues that he is entitled to a new trial because "[his] trial attorney was ineffective by ignoring [his] clearly expressed resolution before trial NOT to sign any stipulation to the government's discovery because the audio copies were deceptively incomplete, the transcripts demonstrably false, and a verifiable cover up, misidentifying audio recorded conspirators derailed the FBI agents' investigation." Pet. at 4. Petitioner states that he was convicted at trial and sentenced to 235 months' imprisonment followed by five (5) years of supervised release. Pet. at 1-2. Further, Petitioner notes that his direct appeal was denied by the Eleventh Circuit and his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2255 was subsequently denied by this Court. Id. The Petition, however, seems to be incomplete in that Petitioner filed it with page five (5) missing. See generally Pet.A petition for a writ of coram nobis is an "extraordinary remedy of last resort" and does not provide a petitioner an opportunity to assert claims he neglected to bring in previously available proceedings. See United States v. Yadigarov, No. 20-10857, 2021 WL 71624, at *4 (11th Cir. Jan. 8, 2021). Additionally, the Supreme Court has held that ineffective assistance of counsel claims are properly pursued under 28 U.S.C. 2255. See Carlisle v. United States, 517 U.S. 416, 429 (1996) ("[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."). Here, Petitioner improperly attempts to bring a claim for ineffective assistance of counsel under the All Writs Act. See Pet. at 4; see also Carlisle, 517 U.S. at 429. Further, Petitioner fails to articulate why the arguments he presents were not--and could not have been--raised in an earlier collateral proceeding. See Yadigarov, 2021 WL 71624 at *4 (holding that the district court did not abuse its discretion in denying defendant's petition for writ of error coram nobis based on ineffective assistance of counsel, filed after his term of supervised release ended, when such a claim would have properly been raised in a collateral attack on the conviction in a motion to vacate and defendant did not provide sounds reasons for failing to seek appropriate relief before his supervised release term ended). See id. at 2. However, because the Petition is incomplete, the Court will permit Petitioner the opportunity to remedy his deficient filing and explain why he could not raise this claim in his prior 2255 motion. Accordingly, Petitioner is hereby ORDERED to show cause on or before March 29, 2021 why his Petition should not be denied as frivolous. In doing so, Petitioner shall refile his Petition with the missing page included. Failure to comply with this Order may result in sanctions, including dismissal of this matter for failure to prosecute and failure to obey court orders. See Fed. R. Civ. P. 41(b); Lewis v. Fla. Dep't of Corr., 739 F. App'x 585, 586 (11th Cir. 2018). Signed by Chief Judge K. Michael Moore on 3/16/2021. (tgr)
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| Filing 5 MOTION for Hearing on the issues of facts and law presented on the petition by Eduardo Del Rio. (lk) |
| Filing 4 Clerks Notice of Magistrate Judge Assignment to Magistrate Judge Lauren Fleischer Louis. (amb) |
| Filing 3 Consent by Pro Se Litigant (Non-Prisoner) Eduardo Del Rio to receive Notices of Electronic Filing at email address: delrio.eduardo@yahoo.com (amb) |
| Filing 2 Clerks Notice of Judge Assignment to Chief Judge K. Michael Moore. (amb) |
| Filing 1 Motion (Complaint) for Writ of Error Coram Nobis (Criminal Case # 97-CR-384-KMM). No fee Required. NOTE: All further docketing is to be done in this civil case, filed by Eduardo Del Rio. (Attachments: #1 Exhibit)(amb) |
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| Defendant: United States of America | |
| Represented By: | Noticing 2255 US Attorney |
| Represented By: | Yvonne Rodriguez-Schack |
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| Plaintiff: Eduardo Del Rio | |
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