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holding that petitioner's history of filing successive habeas petitions warranted "a dismissal without prejudice appears more efficient and better serves the interests of justice than a transfer in this instance."
Summary of this case from Sheppard v. DavisOpinion
Nos. 3:97-CR-0083-D(01), 3:03-CV-1524-D.
July 11, 2003.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
Movant is an inmate currently incarcerated in the federal prison system. On June 12, 1997, a jury found movant guilty of three drug-related offenses. On August 29, 1997, the Court sentenced him to 328 months imprisonment. The Fifth Circuit Court of Appeals affirmed his conviction and sentence on October 13, 1998. On April 7, 2000, movant filed a motion to vacate under 28 U.S.C. § 2255, and the Court denied the motion in all respects, including claims raised under Apprendi v. New Jersey, 530 U.S. 466 (2000) on January 18, 2001.
On July 2, 2003, movant filed the instant action as a Writ of Audita Querela seeking to again present claims under Apprendi. He names the United States of America as respondent. For the reasons that follow, the Court should construe the instant action as a successive motion under 28 U.S.C. § 2255 and dismiss it pending review by a three judge panel of the Fifth Circuit Court of Appeals. Such construction negates any need for movant to pay a filing fee or request to proceed in forma pauperis in this action.
II. WRIT OF AUDITA QUERELA
Movant brings the instant action as a Writ of Audita Querela. He claims that 28 U.S.C. § 2255 is inadequate and ineffective to raise the Apprendi claims raised herein due to § 2255's prohibition on second or successive motions.
"The writ of audita querela permits a defendant to obtain relief against a judgment because of some legal defense arising after the judgment." United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). As noted in Banda, "[i]t is an open question whether the obsolescent writ survives as a post-conviction remedy." Id. Nevertheless, it is settled in the Fifth Circuit that "the writ is not available where, as here, the defendant may seek redress under § 2255." See id.; United States v. Elrod, Nos. 3:93-CR-0377-G(01), 3:01-CV-1046-G, 2002 WL 1331881, at *1 n. 2 (N.D. Tex. June 14, 2002) (accepting finding of Magistrate Judge Kaplan that "relief by way of audita querela . . . is no longer available under the federal rules"). Furthermore, movants may not use a writ of audita querela to circumvent the procedural and legal requirements set forth in 28 U.S.C. § 2255. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). In Valdez-Pacheco, the Ninth Circuit stated:
Moreover, we reject Valdez's contention that audita querela is available in his case due to the fact that he is precluded from raising his claims in a § 2255 motion by those provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, tit. I, § 105, 110 Stat. 1214, 1220 (AEDPA) (codified in relevant part at 28 U.S.C. § 2255 and 2244), that limit the rights of a prisoner to file a second or successive motion. A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs.Id. at 1080 (footnote omitted).
For all of these reasons, the Writ of Audita Querela provides movant with no basis for relief. Consequently, the Court construes the filed writ as a motion to vacate filed pursuant to 28 U.S.C. § 2255.
III. RELIEF UNDER § 2255
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214 limits the circumstances under which a federal prisoner may file a second or successive motion to vacate, set aside, or correct his sentence in federal court. "[A] subsequent motion is `second or successive' when it: `1) raises a claim challenging the petitioner's conviction or sentence that was or could have been raised in an earlier petition; or 2) otherwise constitutes an abuse of the writ.'" United States v. Orozco-Ramirez, 211 F.3d 862,867 (5th Cir. 2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). A motion that is literally second or successive, however, is not necessarily a second or successive application for purposes of the AEDPA. See Stewart v. Martinez-Villareal, 523 U.S. 637, 643-46 (1998). In Stewart, the Supreme Court declined to construe an application as second or successive when it followed a previous dismissal due to prematurity or lack of exhaustion. Id. "To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas review." Id. at 645.
In this case, movant's previous motion to vacate was not dismissed because of any prematurity or lack of exhaustion. The Court considered the claims raised in the previous motion to vacate, including claims raised under Apprendi, and denied the motion. Under Orozco-Ramirez, movant was therefore required to present all available claims in his first motion:
"The requirement that all available claims be presented in a prisoner's first habeas petition is consistent not only with the spirit of AEDPA's restrictions on second and successive habeas petitions, but also with the preexisting abuse of the writ principle. The requirement serves the singularly salutary purpose of forcing federal habeas petitioners to think through all potential post-conviction claims and to consolidate them for a unitary presentation to the district court."Orozco-Ramirez, 211 F.3d at 870-71 (quoting Pratt v. United States, 129 F.3d 54, 61 (st Cir. 1997)).
From a review of the claims raised in the instant motion, the Court concludes that the motion is successive within the meaning of the AEDPA and Orozco-Ramirez because it raises claims that movant could have raised or did raise in his previous motion to vacate. Therefore, movant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). A three-judge panel of the court of appeals must first determine whether this Court should consider the instant motion. Id. § 2244(b)(3)(B). The panel will authorize the filing of a second or successive motion only upon a prima facie showing that the motion is based on: (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. See id. § 2244(b)(3(C), 2255. In this case, the Fifth Circuit has not issued the requisite order authorizing this Court to consider the successive motion to vacate.
Although it is appropriate for the Court to dismiss the successive § 2255 motion without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals, it is also appropriate to transfer the successive motion to the Fifth Circuit for a determination of whether movant should be allowed to file the successive motion in the district court. See Henderson v. Haro, 282 F.3d 862, 864 (5th Cir. 2002); In re Epps, 127 F.3d 364, 365(5th Cir. 1997) (approving the practice of transferring a successive motion to the Circuit and establishing procedures in the Circuit to handle such transfers). Throughout his writ of audita querela, movant maintains that it would be meritless for him to seek permission from the Fifth Circuit to file a second or successive motion under § 2255. Consequently, a dismissal without prejudice appears more efficient and better serves the interests of justice than a transfer in this instance.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge recommends that the instant action be construed as a second or successive motion to vacate filed under 28 U.S.C. § 2255, and that it be DISMISSED without prejudice pending review by a three-judge panel of the court of appeals. It is further recommended that the Court direct the Clerk of the Court to note that this action has been construed as an action under 28 U.S.C. § 2255 and to file in movant's underlying criminal case, Cause No. 3:97-CR-083-D(01), a copy of the "Writ of Audita Querela", these findings, and all other documents filed in this action.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b) (1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).