The opinion of the court was delivered by: Eduardo C. Robreno, J.
Pending before the Court is the petition for a writ of audita querela (the "Petition"), filed by Petitioner James Francis Leinenbach ("Petitioner"), challenging the legality of his criminal sentence.
I. FACTUAL AND PROCEDURAL HISTORY
On May 28, 1993, a grand jury in the Eastern District of Pennsylvania indicted Petitioner on one count of conspiracy to manufacture and distribute more than one kilogram of methamphetamine, in violation of 21 U.S.C. § 846; one count of distribution of three pounds of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and one count of possession of three pounds of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). See Indictment. A jury trial was held before the Honorable Lowell A. Reed, Jr., United States District Court for the Eastern District of Pennsylvania, and on May 16, 1994, a jury convicted Petitioner on all counts. See Gov't Resp. 1. On November 14, 1994, District Judge Reed sentenced Petitioner to 324 months imprisonment (108 months for each count to be served consecutively). See id.
On November 25, 1994, Petitioner filed a timely notice of appeal of his conviction and sentence, which was affirmed by the United States Court of Appeals for the Third Circuit on December 20, 1995. United States v. Leinenbach, 70 F.3d 1258 (3d Cir. 1995). The United States Supreme Court denied certiorari on October 7, 1996. United States v. Leinenbach, 519 U.S. 807 (1996).
On May 30, 2002, Petitioner filed a habeas petition under 28 U.S.C. § 2255, which was denied on the merits on August 30, 2002. See doc. nos. 197, 198, 205. Thereafter, the Third Circuit denied a certificate of appealability on August 29, 2003. See C.A. No. 02-3693.
On April 28, 2003, Petitioner filed a pro se motion seeking a reduction of his sentence, under 18 U.S.C. § 3582(c)(2), which the Court denied on August 25, 2004.*fn1 See doc. nos. 209, 219.
On February 3, 2006, Petitioner filed a second pro se §2255 habeas petition. See doc. no. 232. On February 14, 2006, the Court dismissed the petition without prejudice as it lacked subject matter jurisdiction to consider the petition because it was a second or successive petition under § 2255 and it was filed without permission from the Third Circuit, pursuant to 28 U.S.C. § 2244(b)(3)(A). See doc. no. 233.
On May 17, 2006, Petitioner filed a pro se motion for a reopening of the trial judgment, pursuant to Fed. R. Civ. P. 60(b), which the Court denied with prejudice on January 5, 2007, finding that the motion was a "thinly disguised second or successive motion" under § 2255. See doc. nos. 235, 238.
On March 20, 2008, Petitioner filed a pro se motion to correct "an illegal sentence," pursuant to Fed. R. Crim. P. 35(a), which the Court denied with prejudice on August 19, 2008. See doc. nos. 247, 252. Thereafter, Petitioner appealed the Court's order, which the Third Circuit summarily affirmed on February 18, 2009. United States v. Leinenbach, 318 Fed. App'x 53 (3d Cir. 2009). On March 4, 2009, Petitioner filed a petition for rehearing en banc that was also denied by the Third Circuit on April 1, 2009. See C.A. No. 08-3661. The Supreme Court denied certiorari on October 5, 2009. United States v. Leinenbach, 130 S.Ct. 160 (2009).
On January 8, 2010, Petitioner filed the pending Petition, entitled "Petition for Writ of Audita Querela Pursuant to 'All Writs Act' of 28 U.S.C. § 1651." See Pet'r's Pet. On February 4, 2010, the Government filed a response and Petitioner filed a reply on February 17, 2010. See Gov't Resp.; Pet'r's. Reply.
The writ of audita querela*fn2 is a common law writ that was used to obtain "relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment." Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (quoting United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990) (internal citations omitted)). A party seeking the writ acknowledges that the judgment was valid when rendered, but argues that the judgment has since become invalid due to matters arising post-judgment. See United States v. Coleman, 162 Fed. App'x 163, 165 n.1 (3d Cir. 2006) (nonprecedential).
Although Fed. R. Civ. P. 60(e) abolished the writ of audita querela in civil cases, "the writ is [still] available in criminal cases to the extent that it fills in the gaps in the current system of post-conviction relief."*fn3 Massey, 581 F.3d at 174 (citing United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001)). The writ is available under the All Writs Act, 28 U.S.C. § 1651, which is an act that "is a residual source of authority to issue writs that are not otherwise covered by statute." Id. (quoting Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985)). However, if a "statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Id. Accordingly, courts have limited available remedies under the writ of audita querela to only those instances in which there are gaps in the ...