The opinion of the court was delivered by: SYLVIA RAMBO, Senior District Judge
Before the court is an application for a Writ of Audita
Querela. Petitioner alleges that the writ of Audita Querela is
available for a collateral attack, when habeas corpus relief is
inadequate or ineffective to test the continued validity of
conviction or sentence. Petitioner claims that his sentence was
illegal because the sentence imposed was enhanced by factual and
statutory findings above the applicable range of facts found by a
jury or admitted by Defendant. Petitioner also argues that at the
time of the imposition of sentence, the court erred by
mandatorily acting under 18 U.S.C. § 3553(b)(1). He argues that
since United States v. Booker, ___ U.S. ___, 125 S. Ct. 738
(2005), was not retroactively applied,*fn1 and that the
Booker issue is not cognizable under 28 U.S.C. § 2255*fn2
and 2241, he is without relief. II. Background
Petitioner was sentenced by this court on December 22, 2004,
which conviction and sentence was affirmed by the Third Circuit
Court of Appeals on October 10, 1995. A petition for writ of
certiorari was denied on November 13, 1995.
On June 27, 2001, Petitioner filed a motion pursuant to
28 U.S.C. § 2255 which was dismissed by order dated August 21, 2001.
The appeal from that order was dismissed on October 7, 2002. On
October 22, 2002, the Third Circuit Court of Appeals denied
Petitioner's motion to file a second or successive petition. In
spite of that order, on February 22, 2005, Petitioner filed
another motion pursuant to 28 U.S.C. § 2255, which this court
dismissed by order of February 25, 2005. On September 21, 2005,
Petitioner filed the instant motion.
Black's Law Dictionary, 7th Ed., 1999, instructs that the
writ is "a remedy available to a defendant where an important
matter concerning his case has arisen since the judgment." The
write of audita querela, in civil actions, was abolished by
Federal Rule of Civil Procedure 60(b). In United States v.
Morgan, 346 U.S. 502 (1954), the Court teaches that federal
courts may properly fill the interstices of the federal post
conviction remedial framework through remedies at common law.
In United States v. Ayala, 894 F.2d 425,
282 U.S. App. D.C. 266 (1990), relying on United States v. Morgan, supra, held
that "a federal court can vacate a criminal conviction pursuant
to the common law writ of audita querela only if the writ permits a defendant to raise a legal objection not
cognizable under existing federal post conviction remedies."
Id. at 425.
Petitioner is not entitled, therefore, to bring his claim under
the writ of audita querela. The fact that the AEDPA's
gatekeeping restrictions prevent him from availing himself of
28 U.S.C. § 2255 does not make it inadequate. See Cradle v. United
States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir. 2002); In
re Dornsainvil, 119 F.3d 245, 251 (3d Cir. 1997).
In any event, Petitioner's argument that Booker compels that
enhancements to sentencings be found by a jury or admitted by
defendant is in error. In McReynolds v. United States,
397 F.3d 479
(3d Cir. 2005), the court held that
Booker does not in the end move any decision from
judge to jury, or change the burden of persuasion.
The remedial portion of Booker held that decisions
about sentencings factors will continue to be made by
judges, on the preponderance of the evidence, an
approach that comports with the Sixth Amendment so
long as the guideline system has some flexibility in
Id. at 481. Thus, Petitioner's sentence would be determined in
the same way if sentenced today the only change would be the
degree of flexibility in applying the guideline system.
The Petition for Writ of Audita Querela will be denied. An
appropriate order will be issued. ORDER
In accordance with the accompanying memorandum of law, IT IS
HEREBY ORDERED THAT:
1) The petition for Writ of Audita Querela is
2) This court declines to issue a certificate of
3) The ...