Sam A. Lindsay, United States District Judge

ORDER

Sam A. Lindsay, United States District Judge

On April 24, 2023, the Findings, Conclusions and Recommendation of the United States Magistrate Judge (Doc. 4) was entered, recommending that the court construe as a successive Section 2255 motion and dismiss without prejudice Movant Joshua Jackson's (“Movant”) Petition for Writ of Audita Querela or in [sic] Alternative Motion under the All Writs Act 28 USC § 1651 to Vacate Judgement [sic] Order (“Petition”) (Doc. 3).The Report notes that Movant previously filed three Section 2255 motions challenging his conviction on identical grounds, and those arguments were rejected by both this court and the Fifth Circuit. Doc. 3 at 2-3 (“To the extent that Bruen [New York State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111 (2022)] may provide a defense that was unavailable when the judgment was entered, [Movant] has already unsuccessfully raised his Bruen claim three times in post-conviction proceedings.”). Now, he brings these same arguments in a different procedural medium, a petition for writ of audita querela. Id. at 3.

The Report recommends that the court dismiss the Petition without prejudice because the writ of audita querela is not proper when other post-conviction remedies are available. Id. at 5. The Report further notes that because Movant has previously challenged his conviction, the Petition is properly construed as a successive Section 2255 motion and thus dismissed for failure to obtain a Fifth Circuit order authorizing the successive Section 2255 motion. Id. Movant filed his objections to the Report on May 19, 2023, after first seeking and receiving an extension of time to do so. See Docs. 5, 6.

Movant first objects to the Report's recommendation to reclassify his writ as a successive Section 2255 motion. Doc. 7 at 1. He argues that his request is not successive because he brings a new legal argument to challenge his conviction under 18 U.S.C. § 922(n). Doc. 7 at 1. He points to a district court case, United States v. Quiroz, No. PE:22-CR-00104-DC, 2022 WL 4352482, at *1 (W.D. Tex. Sept. 19, 2022), which held that Section 922(n) was facially unconstitutional under the new test established in Bruen. Id. He asserts that Quiroz creates new legal grounds that render his original conviction constitutionally infirm. Id. at 2. Movant contends that the Petition is not successive because the Fifth Circuit denied his previous request for a successive Section 2255 motion without considering the merits of his legal argument. Id.

Contrary to Movant's assertion, Quiroz does not present new legal authority for the court to reject the Report's recommendation. First, a district court case is not controlling precedent on this court, and the Fifth Circuit has not yet issued an opinion on Quiroz, now before it on appeal. Because the Fifth Circuit has not issued a ruling on the constitutionality of Section 922(n) under the Bruen test, there is not a new, controlling legal precedent for Movant to argue this court should apply. Second, Quiroz does not address post-conviction relief. Quiroz and similar cases address the constitutionality of Section 922(n) in the context of a motion to dismiss an indictment, before the defendant was convicted. Although sister courts have agreed with the Quiroz district court's reasoning and conclusion, none has applied it in actions seeking post-conviction relief, such as Movant seeks here. See United States v. Hicks, No. W:21-CR-00060-ADA, 2023 WL 164170, at *1 (W.D. Tex. Jan. 9, 2023) (finding-in express agreement with Quiroz-that Section 922(n) is facially unconstitutional).

Further, Movant presented his constitutionality argument to the Fifth Circuit in his last motion for habeas relief. Movant argued that Section 922(n) as applied to him was unconstitutional when he sought authorization to challenge his conviction on Count Two as unconstitutional based on Bruen. The Fifth Circuit denied his request. As Movant concedes, the Supreme Court did not make Bruen retroactive, and therefore he cannot seek postconviction relief under that new constitutional test. In sum, Movant has not pointed to any change in controlling or precedential law that allows the court to retroactively find Section 922(n) unconstitutional as applied. According, the court overrules his first objection.

Next, Movant objects to the Report's finding that a writ for audita querela is procedurally inappropriate, arguing that the writ, as an avenue to obtain relief from a judgment due to a new legal defense, is exactly applicable to his circumstance. Doc. 7 at 2. He contends that his “only legal option based on merit due to his new infirm conviction would Audita Querela” because he cannot file a successive habeas action making an argument using Quiroz because he made a similar argument under Bruen in his previous motion. Id.

Movant again fails to set forth any legal or factual errors in the Report. The Report correctly advises that because Movant may seek permission from the Fifth Circuit to file a successive Section 2255 motion, he has not exhausted all possible avenues for relief, and thus, a writ of audita querela is not permissible. Thus, Movant fails to present new legal authority or point to errors in fact or law in the Report. Accordingly, the court overrules his second objection.

Finally, the Report recommends that the court dismiss this action without prejudice. A court may either dismiss a successive habeas motion for lack of jurisdiction or transfer the motion to the Fifth Circuit. In re Hertzog, 444 Fed.Appx. 63, 65 (5th Cir. 2011) (per curiam). The court agrees that dismissal is appropriate here because (1) the Fifth Circuit rejected Movant's prior habeas motion that made the same constitutional argument under Bruen and (2) Movant's argument under Quiroz is premature, as the Fifth Circuit has not yet issued its opinion.

Accordingly, having reviewed the Petition for Writ of Audita Querela (Doc. 3), the file, record, and Report, and having conducted a de novo review of the portions of the Report to which objections were made, the court determines that the findings and conclusions of the magistrate judge are correct, and accepts them as those of the court. The court dismisses without prejudice this action for lack of jurisdiction. Movant may not use a petition for writ of audita querela when other post-conviction remedies are available to him, regardless of his previous failures to obtain relief through those remedies. If Movant would like to file a successive habeas application, he must first file a motion with the Fifth Circuit to obtain authorization.

Further, considering the record in this case and pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c), the court denies a certificate of appealability.The court determines that Movant has failed to show: (1) that reasonable jurists would find this court's “assessment of the constitutional claims debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this determination, the court accepts and incorporates by reference the Report filed in this case. In the event that Movant files a notice of appeal, he must pay the $505 appellate filing fee or submit a motion to proceed in forma pauperis on appeal.

It is so ordered.