IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 26, 2010
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge
Before the court is a document filed by Defendant Juan Duina entitled "Motion in Request for Nunc Pro Tunc Pronunciation of Judgment Pursuant to Rule 60(b)." On September 15, 2009, Defendant Juan Duina filed a petition for writ of audita querela after exhausting a direct appeal and collateral appeals pursuant to 28 U.S.C. § 2255. The government filed a response to the petition on September 30, 2009. Defendant Duina filed a reply on October 9, 2009. However, this court entered an order on October 2, 2009 that denied the petition for writ of audita querela..
Duina claims he was not aware of the denial of his petition until he received a copy of the October 2, 2009 order from the clerk of court as a consequence of his inquiry as to the status of his case. This copy was received by him on March 10, 2010.
The instant motion seeks to have this court re-enter the judgment so that his right to appeal will be reinstated. The instant motion will be deemed to be a motion for reconsideration of the order of October 2, 2009 and will be deemed timely.
Defendant Duina is seeking to reduce his sentence, arguing that the enhancement to his guideline sentence for his role in the offense should have been decided by a jury and not the judge. He relies on United States v. Booker, 543 U.S. 220 (2005), for his argument. The Government, in its response, claimed the petition for writ of audita querela should be denied because Booker is not applicable to cases on collateral review. Floyd v. United States, 40 F.3d 68 (3d Cir. 2005). This court dismissed the petition for writ of audita querela because the writ was an improper form of relief. See Massey v. United States, 2009 WL 2902195 (3d Cir. 2009).
The order of October 2, 2009 was premature. The court did not have before it Duina's reply. Duina, not having received the order of October 2, 2009,*fn1 could not file an appeal. All documents since the filing of the original petition for writ of audita querela have now been considered by this court. Reconsideration of the order of October 2, 2009 has been given. The writ will be denied; however, an amended order will issue thereby allowing Duina to appeal.
IT IS HEREBY ORDERED THAT:
1) The " Motion in Request for Nunc Pro Tunc Pronunciation of Judgment Pursuant to Rule 60(b)" (doc. 430) is deemed to be a motion for reconsideration of the order of October 2, 2009.
2) The motion for reconsideration is granted.
3) The petition for writ of audita querela is denied for the following reasons:
a) United States v. Booker, 543 U.S. 220 (2005) is not available on a collateral appeal; and
b) A writ of audita querela is not an appropriate remedy to seek relief from a sentence on collateral appeal.
Sylvia H. Rambo United States District Judge