Lesch v. McAvoy, No. 3:2009cv00449 - Document 15 (N.D.N.Y 2009)
Court Description: DECISION & ORDER: that Petitioner's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; the petition is DISMISSED in its entirety; and the Clerk is directed to serve a copy of this Order on the petitioner by regular mail. Signed by Judge David N. Hurd on 11/25/2009. (see)
Download PDF
<![CDATA[
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ~~~~~~~~~~~~~~~~~~~~~~~ ANTHONY R. LESCH, Petitioner, vs. 3:09-CV-00449 (DNH/DEP) THOMAS J. McAVOY, Respondent. ~~~~~~~~~~~~~~~~~~~~~~~~~ APPEARANCES: ANTHONY R. LESCH Petitioner, pro se FCC Medium PO Box 90042 Petersburg, VA 23804 DAVID N. HURD United States District Judge DECISION and ORDER I. INTRODUCTION 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.1 See United States v. Lesch, No. 3:02:-CR-0401(McAvoy, J.), Criminal 1 W hile these facts do not appear on the face of the com plaint, judicial notice has been taken of the records of petitioner s prior crim inal proceeding in this Court. Federal Rule of Evidence 201(b) provides, in part, that, [a] judicially noticed fact m ust be one not subject to reasonable dispute in that it is (continued...) 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).2 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 1 (...continued) . . . capable of accurate and ready determ ination by resort to sources whose accuracy cannot reasonably be questioned. Fed. Rule Evid. 201(b). Fed. Rule Evid. 201(c) further provides that: [a] court m ay take judicial notice, whether requested or not, and according to Rule 201(b), m ay do so at any stage of the proceeding. It is appropriate for the court to take judicial notice of public records. Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998)). Indeed, the court has the right to exam ine its own records and take judicial notice thereof in regard to a proceedings form erly had therein by one of the parties to the proceedings now before it. Dimmick v. Tompkins, 194 U.S. 540, 548, 24 S. Ct. 780, 782 (1904). 2 On January 21, 2009, Lesch filed an application to proceed in forma pauperis along with a petition against the United States, the State of New York and the City of Bingham ton seeking m oney dam ages for the property that he forfeited as part of the plea agreem ent. Lesch v. United States, et. al, No. 09-CV-0077, Petition (Dkt. No. 1). By Decision and Order dated April 3, 2009, the Court dism issed that action on the grounds, inter alia, that it was frivolous, and judgm ent was entered accordingly. Id. at Dkt. Nos. 4 and 5. Lesch subsequently m oved for reconsideration, which the Court denied, and then filed a notice of appeal. Id. at Dkt. Nos. 6, 11, and 12. Upon his application, Lesch was granted leave to proceed IFP with regard to the appeal . Id. at Dkt. No. 15. The appeal rem ains pending. - 2 - of Unclean Hands petitioner appears to demand essentially the same relief. Dkt. No. 2. For the reasons discussed below, the petition must be dismissed. II. BACKGROUND 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).3 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. 3 Lesch subsequently filed a docum ent styled as a Motion Alleging Unclean Hands Under the Unclean Hands Doctrine . Lesch, 3:02-CR-0401 (McAvoy, J.) (Dkt. No. 47) sim ilar to the m otion that he has filed in this action (Dkt. No. 2). - 3 - III. MOTION TO PROCEED IN FORMA PAUPERIS 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. IV. PETITION 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 - 4 - 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. § 1651.4 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. 4 Lesch also states that the petition is filed pursuant to 28 U.S.C. §§ 1331 and 1653 and Bivens v. Six Unknown Federal Narcotic Agents and Federal Rule of Civil Procedure 23(a), relating to class actions. Section 1331 does not provide any basis for relief, but grants district courts original jurisdiction of federal questions. Sim ilarly, section 1653 provides for the am endm ent of pleadings to show jurisdiction. Bivens is inapplicable. In Bivens, the Suprem e Court recognized an im plied private cause of action for dam ages against federal officers who violate a citizen s constitutional rights. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66-67, 122 S. Ct. 515, 519 (2001) (discussing the origin of Bivens claim s). Bivens actions, although not precisely parallel, are the federal analog to section 1983 actions against state actors. See Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987). Lesch is not seeking dam ages or other relief for a violation of his constitutional rights, and even if he were, Judge McAvoy is im m une from such relief. Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994), cert. denied 514 U.S. 1102, 115 S. Ct. 1837 (1995) ( Judges enjoy absolute im m unity from personal liability for acts com m itted within their judicial jurisdiction. ) (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217 (1967)). Lesch s claim , rather than for redress for violation of his constitutional rights, appears to be that he should be released from prison because the statutes upon which he was convicted are unconstitutional. Finally, Rule 23(a) has no apparent relevance to Lesch s petition; he has not sought, nor does there appear to be any basis for, class certification. - 5 - Marshal Serv., 474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985).5 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. 92CR-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. 5 An inm ate cannot em ploy the All W rits Act to circum vent the procedural requirem ents of the Antiterrorism and Effective Death Penalty Act of 1996 ( AEDPA )[ Pub. L. No. 104-132] . Persaud v. United States, No. 09-CV-0129, 2009 W L 136027, at *2 (E.D.N.Y. Jan. 20, 2009) (Am on, J) (citing Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007)). The AEDPA am ended 28 U.S.C. § 2255 to provide that [a] second or successive m otion [for habeas corpus] m ust be certified as provided in section 2244 by a panel of the appropriate court of appeals. Triestman v. United States, 124 F.3d 361, 367 (2d Cir. 1997). Lesch s section 2255 m otion, though not yet determ ined, was filed on March 2, 2009, before this petition was filed. - 6 - V. CONCLUSION 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;6 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. IT IS SO ORDERED. Dated: November 25, 2009 Utica, New York. 6 Petitioner should note that although the application to proceed in forma pauperis has been granted, he would still be required to pay other fees that he m ight incur in this action, including copying and/or witness fees, if the action were to proceed forward. - 7 -
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
