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holding that an equitable remedy is proper only in the "absence of a legal remedy, including the right of appeal"
Summary of this case from Levitt v. Sharp (In re Vioxx Prods. Liab. Litig.)Opinion
Case No. 92-20063.
October 13, 2009
MEMORANDUM AND ORDER
Lealon Muldrow was convicted in 1993 of possessing cocaine base with the intent to distribute it. He received a 360-month prison sentence, which was affirmed on direct appeal. Since that time, he has filed numerous post-conviction motions including a petition under § 2255, a § 2241 habeas petition, and two § 3582 motions for a reduced sentence.
He has now filed a motion for a writ of audita querela (doc. 213), along with a motion for appointment of counsel (doc. 212). He argues that his sentence is incorrect based on the legal reasoning of Apprendi v. New Jersey, 530 U.S. 466 (2000), United States v. Booker, 543 U.S. 220 (2005), Kimbrough v. United States, 552 U.S. 85 (2007), and Spears v. United States, 129 S. Ct. 840 (2008).
The writ of audita querela is a direct action, essentially equitable in nature, contemplating a valid defense to the judgment, and absence of a legal remedy, including the right of appeal. Oliver v. City of Shattuck, 157 F.2d 150, 153 (10th Cir. 1946). It is "used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition." United States v. Torres, 282 F.3d 1241, 1245 n. 6 (10th Cir. 2002) (brackets and internal quotation marks omitted).
It is not entirely clear in this circuit whether a writ of audita querela may issue in the criminal context. See, e.g., United States v. Ballard, No. 08-5172, 2009 WL 1489193, at *2 (10th Cir. May 27, 2009) (unpublished decision); United States v. Salazar, No. 04-20013, 2009 WL 2448868, at *5 (D. Kan. Aug. 10, 2009). The Tenth Circuit is clear, however, that "a writ of audita querela is not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255." Torres, 282 F.3d at 1245 (quotation and citation omitted).
Section 2255 is the "exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective." Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965). Mr. Muldrow identifies no reason why § 2255 would be inadequate to address these issues, and indeed he has raised some of these same issues in § 2255 petitions. And given that Mr. Muldrow has already filed § 2255 petitions, this request for relief would be a second or successive petition. But the mere fact that a petitioner is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate. Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999). And a petitioner cannot "avoid the bar against successive § 2255 petitions by simply styling a petition under a different name," Torres, 282 F.3d at 1246.
Moreover, even if this court were to reach the merits of Mr. Muldrow's claims, he would not be entitled to relief. Apprendi and Booker are not retroactive. United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002) ( Apprendi); United States v. Hollis, 552 F.3d 1191, 1195 (10th Cir. 2009) ( Booker). For the reasons that Booker is not retroactive, Kimbrough likely is not either. United States v. Veale, No. 03-CR-167, 2008 WL 619176, at *3 (N.D.N.Y. Mar. 3, 2008) ("neither Booker or Kimbrough have been held to apply retroactively"); United States v. Felipe, No. 05-711-1, 2008 WL 4601917, at *2 (E.D. Pa. Oct. 15, 2008) (reasoning that because Booker has consistently been held not to have retroactive effect, Kimbrough must also be interpreted not to have retroactive effect). And the Supreme Court's decision in Spears does not, as Mr. Muldrow asserts, categorically abolish the sentencing disparity between crack and cocaine. Spears v. United States, 129 S. Ct. 840, 843-44 (2009).
IT IS THEREFORE ORDERED BY THE COURT that defendant's motion for a writ of audita querela (doc. 213) and his motion for appointment of counsel (doc. 212) are denied.