91 CR 20006-6
September 9, 2003
MEMORANDUM OPINION AND ORDER
Defendant, Ramon Castellanos, relying on the All Writs Act ( 28 U.S.C. § 1651), filed a petition for a writ of audita querela, seeking to vacate his sentence based on Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, he contends that because the jury at his trial did not make a finding regarding the type and amount of cocaine involved in the conspiracy, his thirty-year sentence improperly exceeded the twenty-year maximum under 21 U.S.C. § 841(b)(1)(C). The government has filed a response, and defendant has replied.
While the Seventh Circuit has suggested that a writ of audita querela might be available in a criminal case to "plug a gap in the system of federal postconviction remedies," it is doubtful such a gap exists given the availability of 28 U.S.C. § 2255 to in-custody defendants and the writ of coram nobis to those no longer in custody. U.S. v. Johnson, 962 F.2d 579, 583 (7th. Cir. 1992);U.S. v. Kimberlin, 675 F.2d 866, 869 (7th. Cir. 1982). Additionally, a writ of audita querela cannot be used to enable a defendant to file a section 2255 motion without complying with the rules governing such motions. Kimberlin, 675 F, 2d at 869.
In the present case, defendant seeks to challenge his sentence while he remains in custody. Thus, his only potential avenue or relief is section 2255. The court finds no authority that would allow an in-custody defendant to utilize the writ of audita querela because the defendant chooses not to pursue a remedy under section 2255, or is otherwise prohibited from pursuing relief under that provision in this court by a second section 2255 motion as is the case here. The writ ofaudita querela cannot be used for the sole purpose of circumventing orderly procedure. Kimberlin, 675 F.2d at 869. This is likewise true of the All Writs Act. Kimberlin, 675 F.2d at 869. Therefore, the court denies defendant's petition for writ ofaudita querela without reaching the merits of the petition.