United States District Court, E.D. Virginia, Norfolk Division
NATHANIEL A. RICHARDSON, Petitioner
UNITED STATES OF AMERICA, Respondent
MEMORANDUM OPINION AND ORDER
A. Jackson Judge
the Court is a "Writ of Audita Querela." ECF No.
414. filed by pro se litigant Nathaniel A.
Richardson ("Petitioner"), submitted pursuant to
Title 28, United States Code. Section 1651 seeking relief
from judgment pursuant to. inter alia, the Supreme
Court's rulings in United States v. Booker, 543
U.S. 220 (2005) and United States v. Morgan, 346
U.S. 502 (1954). For the reasons set forth below.
Petitioner's instant motion is DISMISSED.
FACTUAL AND PROCEDURAL HISTORY
25, 1996, Petitioner was charged in a multi-count indictment
alleging violations of federal drug laws, continuing criminal
enterprise, and money laundering. ECF No. 1. On October 28,
1996, a jury found Petitioner guilty on Count One charging
Petitioner with Conspiracy to Distribute Cocaine Base and
Heroin in violation of 21 U.S.C. § 846; Count Two
charging Petitioner with Continuing Criminal Enterprise in
violation of 21 U.S.C. § 848; Count Three charging
Petitioner with Distribution and Possession with Intent to
Distribute Cocaine Base in violation of 21 U.S.C, 841(a)(1);
and Counts Fifteen and Sixteen charging Petitioner with Money
Laundering in violation of l 8 U.S.C. §
1956(a)(l)(B)(i). ECF No. 122. On February 3, 1997, the Court
sentenced Petitioner to life imprisonment on Count Two, life
imprisonment on Count Three, two hundred forty (240) months
imprisonment on Count Fifteen, and two hundred forty (240)
mouths on Count Sixteen, all lo be served concurrently. ECF
No. 144. The Court vacated the conviction on Count One.
appealed, and the United States Court of Appeals for the
Fourth Circuit affirmed judgment. United States v.
Richardson, 233 F.3d 223 (4th Cir. 2000). cert,
denied, 534 U.S. 1077 (2002). Petitioner followed with
numerous unsuccessful attempts to obtain postconviction
relief from this judgment including the following: §
2255 Motion to Vacate, Set Aside, or Correct Sentence on
December 04, 2002, ECF No. 249; Rule 59(e) Motion to Alter or
Amend Judgment on July 28, 2003. ECF No. 269: Motion for
Modification of Sentence on October 18. 2005. ECF No. 298;
§ 3582 Motion for Modification of Sentence on September
24, 2007, ECF No. 323; § 2255 Motion to Vacate, Set
Aside, or Correct Sentence on July 9, 2008, ECF No. 342; and
a Rule 60(b) Motion for Relief on May 1, 2014, ECF No. 385.
filed the instant Writ of Audita Querela on May 31, 2016.
Petitioner alleges that his sentencing is unconstitutional
because it relied on then-mandatory United States Sentencing
Guidelines ("Sentencing Guidelines*') and required
judicial fact-finding in violation of his Sixth Amendment
right to a jury trial as established in Booker, 543
U.S. at 226. Additionally. Petitioner claims that the
mandatory sentencing regime resulted in an unwarranted
sentence that was an extreme disparity from the sentences
imposed on his co-defendants and greater than necessary,
contrary to 18 U.S.C. § 3553(a). Finally, Petitioner
argues that a Writ of Audita Querela is the appropriate
channel of relief because Booker was not
retroactively applicable to enable a collateral attack
pursuant to 28 U.S.C. § 2225, and his circumstances arc
so extreme and unjust as to deserve this extraordinary writ.
querela is a common law writ "that, if available al
all.... can only be available where there is a legal
objection to a conviction, which has arisen subsequent to
that conviction, and which is not redrcssable pursuant to
another post-conviction remedy." United Slates v.
Holder, 936 F.2d 1. 5 (1st Cir. 1991): see also In
re Van Wagner, No. 95-8030. 1995 WL 496802 (4th Cir.
1995) (per curiam) (noting a writ of audita querela is only
available where a fundamental error has occurred and there is
a legal objection to a conviction arising subsequent to the
conviction and to which other post-conviction remedies are
unavailable). "Continuation of litigation after the
final judgment and exhaustion or waiver of any statutory
right of review [such as a § 2255 motion] should be
allowed through this extraordinary remedy only under
circumstances compelling such action to achieve
justice." United States v. Morgan. 346 U.S.
502. 510-11 (1954). furthermore, relief through audita
querela pursuant to the All Writs Act. 28 U.S.C. § 1651.
is only available when the remedy sought is not otherwise
covered by statute. Carlisle v. United States, 517
U.S. 416, 429 (1996) ('"Where a statute specifically
addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling."
(quoting Pa. Bureau of Corr. v. U.S. Marshals Serv..
474 U.S 34. 43 (1985)). Here, as explained below,
Petitioner's claims are cognizable in a § 2255
motion, and thus a writ of audita querela is not an available
remedy. See United States v. Padilla, 478 F.Supp.2d
865, 868 (ED. Va. 2007) (citing Carrington v. United
States, 470 F.3d 920, 923 (9th Cir. 2006)). "The
fact that a prisoner is denied relief pursuant to a section
2255 petition does not entitle him to such extraordinary
relief." Harris v. United States, No. 2:S8CR76,
2006 WL 335627. at *2 (E.D. Va. Feb. 14, 2006) (citing In
re Rushing-Floyd, 62 Fed.Appx. 64, 64-65 (4th Cir.
2255 of Title 28 of the United States Code provides prisoners
in federal custody a means to vacate, set aside, or correct a
sentence "upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack." § 2255(a). "Those
convicted in federal court are required to bring collateral
attacks challenging the validity of their judgment and
sentence by 11 ling a motion to vacate sentence pursuant to
28 U.S.C. § 2255, " hi re Vial, 115 F.3d
1192, 1194 (4th Cir. 1997), unless such motion is
"inadequate or ineffective to test the legality of |
their j detention, " § 2255(e). A federal prisoner
may challenge the legality of his detention through a writ
outside of § 2255 in only a limited number of
§ 2255 is inadequate and ineffective to test the
legality of a conviction when: (1) at the time of conviction,
settled law of this circuit or the Supreme Court established
the legality of the conviction; (2) subsequent to the
prisoner's direct appeal and first § 2255 motion,
the substantive law changed such that the conduct of which
the prisoner was convicted is deemed not to be criminal: and
(3) the prisoner cannot satisfy the gatekeeping provisions of
§ 2255 because the new rule is not one of constitutional
In re Jones, 226 F, 3d 328, 333-34 (4th Cir. 2000).
Writ of Audita Querela, Petitioner claims, based on
United States v. Booker, 543 U.S. 220 (2005). that
his Sixth Amendment right to a jury trial was violated when
this Court sentenced him under the then-mandatory Sentencing
Guidelines. Because the Supreme Court did not hold
Booker to be retroactively applicable on collateral
review. Petitioner argues that postconviction relief under
§ 2255 is unavailable, and, instead, forms his petition
as a writ of audita querela. However, a writ of audita
querela is only available when there is no statutory vehicle
to collaterally attack a sentence's validity. Because
§ 2255 provides a means for a prisoner in federal
custody to vacate, set aside, or correct a sentence, it is
the appropriate remedy, and Petitioner's instant motion,
for reasons set forth below, is without merit.
claim fails the "inadequate or ineffective" test
set forth above and adopted from In re Jones, 226
F.3d 328. 333-34 (4th Cir, 2000). At the time of his
conviction. Petitioner's conviction was based on settled
law. The substantive law did not change so as to make
Petitioner's conduct legal: rather. Petitioner docs not
challenge the criminality of his conduct, but the sentencing.
Finally, the rule that Petitioner challenges-the rule
established in Booker-is precisely one of
constitutional law: Booker challenged the
constitutionality of the ...