CASE NO. 04CV1376 R (NLS), 97CR2546 R.
December 12, 2005
ORDER DENYING WRIT OF AUDITA QUERELA
Defendant brings a petition for writ of audita querela on the ground that his convictions on gun charges are illegal and must be vacated pursuant to Bailey v. United States, 516 U.S. 137, 143 (1995). For the reasons set forth below, the petition is denied.
On August 20, 1998, defendant Reginald Owen ("defendant") pled guilty pursuant to a written plea agreement. On March 22, 1999, defendant was sentenced as follows: (1) Counts 3, 5, 9, and 11: ninety-seven months for armed robbery and credit union robbery in violation of 18 U.S.C. § 2113(a) and (d); (2) Count 4: five years to run consecutive to the sentence imposed for Counts 3, 5, 9, and 11 for carrying of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c); and (3) Count 12:20 years to run consecutive to all other sentences for carrying of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c). A judgment was entered on March 25, 1999. A corrected judgment was entered on May 19, 1999. Defendant's sentence remained the same under the corrected judgment. Defendant did not appeal his conviction or sentence.
On March 21, 2000, defendant filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. That motion was denied in an order filed May 1, 2001.
Defendant filed the present writ of audita querela on July 4, 2004. On November 14, 2005, the petition was transferred to the docket of the undersigned.
Defendant argues that he is entitled to a writ of audita querela because defendant never admitted that he actively employed a firearm during the robbery. Active employment of a firearm is, pursuant to Bailey, supra, a requirement for a § 924(c)(1) charge.
As the Ninth Circuit has explained, a federal prisoner cannot challenge a conviction or sentence by means of a petition for a writ of audita querela if the prisoner's claims could be raised in a § 2255 motion. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). "At common law, the writ of audita querela permitted a judgment debtor to obtain equitable relief from a legal judgment because of some defense or discharge arising after the entry of the judgment." Id. (citing 7 Am.Jur.2d Audita Querela § 1 (1997)). However, courts have recognized that the writ has application in the criminal context.See Doe v. I.N.S., 120 F.3d 200 (9th Cir. 1997) (noting that audita querela "`provides relief from the consequences of a conviction when a defense or discharge arises subsequent to entry of the final judgment'" (quoting United States v. Johnson, 962 F.2d 579, 582 (7thCir. 1992)).
Although the writ of audita querela was expressly abolished by the Federal Rules of Civil Procedure, "[t]he writ, or a modern equivalent, at least potentially survives in the federal criminal context, however, under the Supreme Court's decision in United States v. Morgan, 346 U.S. 502 (1954) and the All Writs Act."Valdez-Pacheco, 237 F.3d at 1079. However, "the common law writs survive only to the extent that they fill `gaps' in the current systems of postconviction relief." Id. Thus, "a federal prisoner may not challenge a conviction or sentence by way of a petition for a writ of audita querela when that change is cognizable under § 2255 because, in such a case, there is no `gap' to fill in the postconviction remedies." Id. at 1080.
Moreover, audita querela is not available simply because a defendant is precluded from raising his claims in a § 2255 motion by certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 that limit the right to file a second motion under § 2255. See id. "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." Id.
Defendant's challenge to his conviction is one that is properly raised in a § 2255 motion. See United States v. Barron, 172 F.3d 1153 (9th Cir. 1999) (recognizing a § 2255 motion to be an appropriate vehicle for a defendant who had pled guilty pursuant to a plea agreement to press his claim that his conviction on a gun count was unlawful pursuant to Bailey) (en banc). Thus, under Valdez-Pacheco, it would be improper for the court to grant the writ of audita querela.
However, simply because defendant is not entitled to a writ of audita querela and has already filed one § 2255 motion does not necessarily mean that he does not have an avenue available for pressing his claim. A defendant may file a second motion for relief pursuant to § 2255 under limited circumstances. Specifically, § 2255 provides that "[a] second or successive petition must be certified as provided in section 2244 by a panel of the appropriate court of appeals. . . ." Section 2244(b)(3)(A) provides that "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." Thus, defendant may move the Ninth Circuit Court of Appeals for an order authorizing defendant to file, and this court to hear, a second § 2255 motion raising the claim raised in the present petition. It is important for defendant to understand that, absent authorization by the Ninth Circuit, this court would not have jurisdiction to consider defendant's claims in the context of a motion brought pursuant to § 2255.
For the reasons set forth above, the Petition for Writ of Audita Querela filed pursuant to 28 U.S.C. § 1651 is denied. The Clerk shall terminate this action (04CV1376) accordingly.
IT IS SO ORDERED.