ALD-202 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1614
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LEONARD A. PELULLO,
Appellant,
v.
UNITED STATES OF AMERICA
__________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. Nos. 11-cv-06678 and 01-00124; D.C. Crim. No. 94-cr-00276-002)
District Judge: Dickinson R. Debevoise
__________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 14, 2012
Before: SLOVITER, FISHER and WEIS, Circuit Judges
(Opinion filed: June 26, 2012)
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OPINION
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PER CURIAM.
Appellant Leonard Pelullo, a federal prisoner, is currently serving a sentence
imposed by the United States District Court for the District of New Jersey for
embezzlement and money laundering. We affirmed the judgment of conviction and
sentence in United States v. Pelullo, 185 F.3d 863 (3d Cir. 1999) (table) (“Pelullo I”).
1
We described a decade of litigation since then in Pelullo v. United States, 352 Fed. Appx.
620 (3d Cir. 2009), which the instant appeal does not require us to repeat.
On May 17, 2010, Pelullo moved for relief pursuant to Fed. Rule Civ. Pro. 60(b)
and (d) on the ground that the Government misrepresented to us in a prior appeal, see
United States v. Pelullo, 399 F.3d 197 (3d Cir. 2005), that the Pension & Welfare
Benefits Administration (“PWBA”) was not a part of the prosecution team. The
Government’s assertion was in support of its argument that it could not be held
responsible for failure to disclose documents that the PWBA possessed that could
otherwise be classified as Brady material, Brady v. Maryland, 373 U.S. 83 (1963).1 This
motion was supported by documents Pelullo had recently received pursuant to a request
under the Freedom of Information Act.
On July 22, 2011, the District Court disposed of Pelullo’s May 17, 2010 Rule
60(b) and (d) motion by determining that it lacked jurisdiction because the motion was, in
reality, an unauthorized second or successive section 2255 motion. See United States v.
Pelullo, 2011 WL 3022534 (D.N.J. July 22, 2011). The District Court transferred the
matter to us for treatment as an application for leave to filed a second or successive
section 2255 motion, 28 U.S.C. § 2255(h), resulting in an appeal docketed at C.A. No.
11-3134. Pelullo also appealed this decision, resulting in an appeal docketed at C.A. No.
1
In Pelullo, 399 F.3d 197, we held that there was no suppression by the Government of
the warehouse documents, see id. at 216, and that the PWBA as an entity was not part of
the prosecution team and thus the prosecution team was not required to disclose
documents possessed by PWBA officials, see id. at 216-19. We thus found it
unnecessary to decide whether the withheld documents were material and favorable to the
defense and whether there was a reasonable probability that the evidence would have
changed the result of the proceeding, see id. at 219.
2
11-3222. The two appeals have been consolidated and are currently pending before us.
Pelullo is represented by counsel in these appeals.
Rather than awaiting the outcome of the above-referenced appeals, on November
4, 2011, Pelullo filed an item pro se in the district court titled “Motion for the Court to
Exercise Its Supervisory Power to Dismiss the Indictment or Grant a New Trial and to
Initiate Disbarment Proceedings Against the Prosecutors and Hold Those Prosecutors in
Contempt for Violating Courts [sic] Orders.” In this motion, Pelullo sought to vacate the
District Court’s July 22, 2011 Order on the ground that two Assistant United States
Attorneys knowingly filed false affidavits in the matter currently on appeal. Pelullo
argued that their conduct violated certain criminal statutes, and he also argued that their
conduct and the conduct of one other prosecutor violated the New Jersey Rules of
Professional Conduct. Pelullo further asked to be released on bail.
In an order entered on January 25, 2012, the District Court denied the motion for
lack of jurisdiction and denied the bail application. See United States v. Pelullo, 2012
WL 243538, *5 (D.N.J. January 25, 2012).2 The District Court further held that, even if
jurisdiction was not lacking, Pelullo’s claims would not justify relief. See id. at *5-*12.
In so holding, the District Court observed that it had the documents upon which Pelullo
now relied when it issued its July, 2011 Order, see id. at *3, and that Pelullo’s argument
concerned only a “handful” of alleged misstatements, see id. at *5.
2
We agree with the District Court that, to the extent Pelullo was seeking to collaterally
attack his conviction and sentence, the motion is a second or successive section 2255
motion. Absent our prior authorization, the District Court lacked jurisdiction to consider
it. See 28 U.S.C. §§ 2255(h).
3
Pelullo appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk advised
him that the appeal may warrant summary action under Third Cir. LAR 27.4 and I.O.P.
10.6. The parties have filed responses which we have considered.
We will summarily affirm the order of the District Court because no substantial
question is presented by this appeal, Third Circuit LAR 27.4 and I.O.P. 10.6. Our
standard of review over questions of law is plenary. See United States v. Washington,
549 F.3d 905, 911 (3d Cir. 2008). The District Court properly declined to exercise its
supervisory or inherent power to award Pelullo a new trial or to dismiss the indictment.
Pelullo may not invoke the court’s inherent or supervisory power merely because he
cannot meet the gatekeeping requirements for a second or successive section 2255
motion; otherwise, the gatekeeping requirements enacted by Congress would be
meaningless. See United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000)
(procedural barriers erected by AEDPA are insufficient to enable petitioner to resort to
coram nobis). See also United States v. Barrett, 178 F.3d 34, 55 & n.18 (1st Cir. 1999)
(All Writs Act does not authorize federal courts to issue ad hoc writs whenever
compliance with statutory procedures is inconvenient). The Supreme Court held in
Carlisle v. United States, 517 U.S. 416, 425–28 (1996), that federal courts lack “inherent
supervisory power” to enter an untimely judgment of acquittal sua sponte when doing so
is in clear contradiction of Federal Rule of Criminal Procedure 29(c), and we held in
Washington, 549 F.3d at 914-17, that a federal district court lacks inherent power to
vacate a criminal judgment procured through fraud. It necessarily follows that the
District Court properly declined to grant the relief Pelullo requested.
4
Although the District Court has inherent authority to discipline attorneys for
unprofessional conduct, see In re: Surrick, 338 F.3d 224, 231 (3d Cir. 2003), Pelullo
provided no basis for the District Court to do so here, because his claim of fraudulent
misrepresentations by the staff of the U.S. Attorney’s Office is meritless for the reasons
given in the court’s thoughtful opinion, Pelullo, 2012 WL 243538, *5-*12 (“Nothing
provided by [Pelullo] suggests actual knowledge or deliberate fraud by the government
that would justify either an ethics inquiry or some other form of extraordinary
intervention by the Court.”). Further, as explained by the District Court, bail pending
disposition of habeas corpus review is available “only when the petitioner has raised
substantial claims upon which he has a high probability of success or exceptional
circumstances exist which make a grant of bail necessary to make the habeas remedy
effective.” Landano v. Rufferty, 970 F.2d 1230, 1239 (3d Cir.1992). Pelullo did not
make this showing and thus bail was not warranted.
For the foregoing reasons, we will summarily affirm the order of the District Court
denying Pelullo’s “Motion for the Court to Exercise Its Supervisory Power to Dismiss the
Indictment or Grant a New Trial, etc.” as meritless and for lack of jurisdiction.
5