10-cv-58 (JSR) (HBP) 00-cr-103 (JSR)
Before the Court is Carl Hall's latest petition for post-conviction relief. This Court previously denied Hall's first such application on January 23, 2013, see ECF No. 20, and later denied several subsequent motions as second or successive petitions, see ECF Nos. 29, 34. Hall has now filed another motion challenging his sentence. On October 2, 2018, the Honorable Henry B. Pitman, United States Magistrate Judge, issued a Report and Recommendation ("R&R") recommending that Hall's latest motion again be denied as a successive application under 28 U.S.C. § 2255. ECF No. 37. By Order dated October 19, 2018, this Court extended Hall's time to file objections. Those objections have now been received and will be docketed with this Order. Having reviewed the underlying record de novo, and considered Hall's objections, the Court is in complete agreement with Judge Pitman's thorough analysis and adopts his Report and Recommendation in its entirety.
Hall objects that Judge Pitman erred in treating his motion as one under 28 U.S.C. § 2255, rather than as a motion for a writ of audita querela. The writ of audita querela may lie where no other post-conviction remedy exists and where the absence of such a remedy gives rise to serious constitutional concerns. United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). Hall appears to argue that the remedy of audita querela should be available to him because he could not bring a § 2255 motion to challenge his conviction under Booker v. United States, 543 U.S. 220 (2005), as Booker is not retroactive. But as Judge Pitman noted, Hall has already received Booker resentencing and thus could not raise any even arguably meritorious Booker claim, however denominated. See R&R 2-3. Nor may Hall resort to audita querela simply because his claims would all be untimely or procedurally barred if raised under § 2255. Cf. United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) ("A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs.").
Regardless of his choice of caption, Hall plainly seeks to relitigate the same issues he has previously and unsuccessfully raised to challenge his sentence. Judge Pitman therefore properly evaluated his motion as one arising under § 2255. Having done so, it is clear that Hall cannot meet the standard to file a successive petition without permission from the Court of Appeals. Hall points to no evidence whatsoever that might suggest he is not guilty, see 28 U.S.C § 2255(h)(1), nor has he identified any "new rule of constitutional law" promulgated by the Supreme Court that might invalidate his sentence, see 28 U.S.C. § 2255(h)(2).
For the foregoing reasons, the Court denies Hall's motion. The Court further certifies that any appeal from this Order would not be taken in good faith, as Hall's claim lacks any arguable basis in law or fact, and therefore permission to proceed in forma pauperis is denied. 28 U.S.C. § 1915(a)(3). The Clerk of the Court is directed to close all open entries on both the civil and criminal dockets.
SO ORDERED. Dated: New York, NY
December 4, 2018
JED S. RAKOFF, U.S.D.J.
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