Whitehorse v. U.S.

Full title: LUVEN WHITEHORSE, Petitioner, v. UNITED STATES OF AMERICA Respondent

Court: United States District Court, D. Utah

Date published: Oct 1, 2010

Case No. 2:03-CR-306 (D. Utah Oct. 1, 2010)

Opinion

Case No. 2:03-CR-306.

October 1, 2010

ORDER

DEE BENSON, District Judge

This court sentenced the petitioner, Luven Whitehorse, to 188 months incarceration for aggravated sexual abuse of a minor while within Indian country. Judgment was entered the same day. Mr.Whitehorse did not appeal this sentence but sought to set it aside pursuant to 28 U.S.C. § 2255. The defendant filed multiple § 2255 motions and each motion was denied. Mr. Whitehorse remains in the custody of the Bureau of Prisons.

Mr. Whitehorse now petitions the court for a writ of audita querella and a writ of error coram nobis. The court ordered the United States to respond to the petitioner's petition, and the government did so on September 7, 2010. The court, after reviewing the arguments presented by both parties, adopts the Respondent's arguments.

The court concludes that the petitioner is not entitled to a writ of coram nobis because he is currently in custody. See United States v. Torres, 282 F.3d 1241, 1245 (10^th Cir. 2002). The petitioner is also not entitled to a writ of audita querela because the error he asserts-ineffective assistance of counsel-could have been remedied with a motion to vacate under 28 U.S.C. § 2255. Contrary to the petitioner's argument, the "fact that [he was] precluded from filing a second 2255 petition does not establish that the remedy in § 2255 is inadequate." Carvalho v. Pugh, 177 F.3d 1177, 1179 (10^th Cir. 1999); see also United States v. Harris, No. 10-5058, 2010 WL 3274503 * 3 (10^th Cir. Aug. 19, 2010). Accordingly, the petitioner's petition is DENIED.

IT IS SO ORDERED.

DATED this 30^th day of September, 2010.