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McCrory v. United States

December 23, 2008


The opinion of the court was delivered by: Schiller, J.


Petitioner Lamar McCrory brings this Petition for Relief Pursuant to the Writ of Audita Querela, 28 U.S.C., §1651. The petition includes two claims for relief. Petitioner first asserts that he was only recently informed, by his former counsel, of a plea offer extended by the government. He also contends that he only recently learned, during the same conversation with his former counsel, that he "would have been able to enter an open-plea without any plea bargain." As his second claim for relief, Petitioner claims that a key government witness was under hypnosis during his trial and that the government withheld this information.


On June 25, 1996, a jury found Petitioner guilty of conspiracy to commit armed bank robbery, armed bank robbery, and carrying and using a firearm during a crime of violence. The Court of Appeals affirmed this judgment on July 22, 1997. Pursuant to 28 U.S.C. § 2255, Petitioner filed a habeas petition, which was denied on July 23, 1998. On March 7, 2000, the Honorable James Giles denied Petitioner's Motion to Vacate the Judgment of Conviction, brought pursuant to Rule 60(b). On January 23, 2003, Petitioner filed a letter motion for relief from judgment, which was denied. In denying this motion, the District Court declared: "By filing the instant petition under Fed. R. Civ. P. 60(b)(6), petitioner seeks to circumvent the statutory bar against second or successive habeas petitions." A separate letter motion, seeking an evidentiary hearing, was denied on February 19, 2003, with the District Court noting that the motion "makes the same argument as his [Petitioner's] motion pursuant to 28 U.S.C. § 2255, denied July 24, 1998; motion pursuant to Rule 60(b), denied March, 2000; and letter motion for relief from judgment, denied January 24, 2003." The Third Circuit, on January 31, 2006, denied Petitioner's application to file a second or successive § 2255 motion. On April 23, 2007, the Court of Appeals denied another application by Petitioner to file a second or successive § 2255 motion.

On April 24, 2008, Petitioner filed the instant petition. This case was subsequently reassigned from Judge Giles to this Court on October 16, 2008. In order to properly review the instant Petition, this Court requested a copy of the case file, which was not retrieved from archives until December 19, 2008.


A. The Writ of Audita Querela

Audita Querela, Latin for "the complaint having been heard," represents an ancient writ used to challenge a judgment that, while justified at the time it was rendered, has been placed in question by subsequently discovered evidence or by a new legal defense. BLACK'S LAW DICTIONARY 141 (8th ed. 2004); see also United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005). The Federal Rules of Civil Procedure have abolished this writ in the civil context. FED. R. CIV. P. 60(e).

It is unclear whether the writ of audita querela remains applicable, under the All Writs Act, in the criminal context. 28 U.S.C. § 1651(a). The All Writs Act provides federal courts with the power "to issue such commands ... as may be necessary or appropriate to effectuate and prevent the frustration of orders it has previously issued in its exercise of jurisdiction otherwise obtained." Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 40 (1985) (quoting United States v. N.Y. Tel. Co., 434 U.S. 159, 172 (1977)).

In an unpublished opinion, the Third Circuit observed "that there is support for the general proposition that common law writs such as audita querela can be employed to 'fill the gaps' in post-conviction remedies." Shelton v. United States, 201 F. App'x 123, 124 (3d Cir. 2006) (citing United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001)); see also United States v. Hannah, 174 F. App'x 671, 673 (3d Cir. 2006). Nonetheless, Hannah and other unpublished Third Circuit decisions have declared that no such gap exists when a claim is cognizable under 28 U.S.C. § 2255. See, e.g., Hannah, 174 F. App'x at 673; United States v. Paster, 190 F. App'x 138, 139 (3d Cir. 2006).

In Paster, the Third Circuit agreed with the Ninth Circuit's holding "that '[a] prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs' such as audita querela." Paster, 190 F. App'x at 139 (quoting Valdez-Pacheco, 237 F.3d at 1077).In this same opinion, the Third Circuit cited approvingly to an Eleventh Circuit decision holding that audita querela was unavailable when relief is cognizable under § 2255. Id. (citing Holt, 417 F.3d at 1175); see also Shelton, 207 F. App'x at 124 ("For claims that are cognizable in a § 2255 motion, the writ of audita querela is not available."). As the Eleventh Circuit noted in Holt, "[t]he Fourth, Fifth, Seventh, Ninth, and Tenth Circuits have determined likewise that a federal prisoner may not use the writ of audita querela where post-conviction relief is available through § 2255 or coram nobis motions." Holt, 417 F.3d at 1175 (citations omitted); see also Valdez-Pacheco, 237 F.3d at 1079-80 (agreeing with Fifth, Seventh and District of Columbia Circuits that audita querela is not available to challenge a conviction when § 2255 is available).*fn1

Thus, Petitioner may not disguise his successive habeas petition as one seeking relief pursuant to the writ of audita querela. See United States v. Reaves, 177 F. App'x 213, 213 (3d Cir. 2006) ("A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or sentence."); United States v. Coleman, 1662 F. App'x 163, 164 (3d Cir. 2006) (same); Melton v. United States, 359 F.3d 855, 857 (7th Cir. 2004) ("Any motion filed in the district court that imposed the sentence, and substantively within the scope of § 2255 ¶ 1, is a motion under § 2255, no matter what title the prisoner plasters on the cover.").

B. Petitioner McCrory's Claims

Petitioner's first claim for relief contends that he was denied the effective assistance of counsel because his attorney failed to convey to him a plea offer. (Pet. at 3.) He also asserts that his attorney failed to advise him regarding the "option of a plea without a plea bargain." (Id. at 1.) Petitioner alleges that he only recently ...

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