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Richardson v. United States

United States District Court, E.D. Virginia, Norfolk Division

July 12, 2016



          Raym A. Jackson Judge

         Before 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.


         On July 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. Id.

         Petitioner 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.

         Petitioner 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.


         Audita 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. 2003)).

         Section 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 circumstances:

§ 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 law.

In re Jones, 226 F, 3d 328, 333-34 (4th Cir. 2000).


         In his 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.

         Petitioner's 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 ...

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