Opinion
3:11-CV-2049-K 3:07-CR-312-K(01)
01-04-2012
VINCENT JOHN BAZEMORE, JR., #37160-177, Petitioner, v. UNITED STATES OF AMERICA Respondent.
MEMORANDUM OPINION AND ORDER
Before the Court for consideration is Petitioner Vincent John Bazemore's pro se petition for writ of audita querela. For the reasons set out below, the petition is summarily denied.
I. BACKGROUND
Petitioner, a federal inmate within the Bureau of Prisons, filed a petition for writ of audita querela, challenging the judgment of conviction on the ground that the restitution order "exceeded the court's authority under the MVRA." (Doc. 1 at 1-2.)
Bazemore pled guilty to securities fraud and was sentenced to a sixty-month term of imprisonment, a three-year term of supervised release, and restitution in the amount of $15,761,581.11. See United States v. Bazemore, No. 3:07-cr-0312-K (N.D. Tex. Sept. 22, 2009). He unsuccessfully filed a motion to vacate under 28 U.S.C. § 2255, and a motion for leave to file a successive section 2255 motion. See Bazemore v. United States, No. 3:10-CV-0027-K, 2010 WL 4860783 (N.D. Tex. Nov. 29, 2010), certificate of appealability denied, No. 10-11240 (5th Cir. May 9, 2011); In re Bazemore, No. 11-10573 (5th Cir. Aug. 31, 2011). He also filed a petition for writ of audita querela, which claimed the federal government seized property without giving him appropriate notice under the Civil Forfeiture Act. See Bazemore v. United States, No. 3:11-CV-2754-O (N.D. Tex. 2011). The Court construed the petition for writ of audita querela as a civil action, because he was not seeking habeas relief, and dismissed the case as barred by the three-strike provisions of 28 U.S.C. § 1915(g). Id. (November 2011 order accepting findings and recommendation of the magistrate judge).
II. ANALYSIS
"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). See also United States v. Miller, 599 F.3d 484, 489 (5th Cir. 2010) ("a writ of audita querela is used to challenge a judgment that was correct at the time it was rendered but which is made infirm by matters that arose after its rendition."). As noted in Banda, however, "[i]t is an open question whether the . . . writ survives as a post-conviction remedy." Banda, 1 F.3d at 356; see also Miller, 599 F.3d at 489 ("the writ of audita querela might also survive in criminal adjudications, if there is a gap for it to fill."). Assuming the writ survives, it is available only "where there is a legal objection to a judgment which has arisen subsequent to that judgment." Miller, 599 F.3d at 489. "Purely equitable grounds for relief do not justify the issuance of a writ of audita querela." Id. In addition, "the writ is only available where the legal objection raised cannot be brought pursuant to any other post-conviction remedy." Id. It is now well established that a petitioner may not seek a writ of audita querela if he "may seek redress under § 2255." Banda, 1 F.3d at 356.
Here, Bazemore has not asserted a legal defense that arose after the judgment. His general, conclusory allegation that "the restitution order . . . [was] not limited to Bazemore's offense of conviction" does not involve a new legal defense. (Doc. 1 at 2.) As noted in the order denying section 2255 relief, the plea agreement specifically advised Petitioner that the court would "order restitution to all victims charged in the one-count information." Bazemore, 3:10-CV-0027-K (Doc. 34 at 9, citing Plea Agreement at H 6) (emphasis in original). The Court reiterated this information during arraignment, including the important fact that the district court alone at sentencing could determine the restitution amount. Id. (citing Arraignment Tr. at 7-8, and 15-16). Accordingly, because Petitioner cannot establish a legal objection or defense that arose after entry of the judgment of conviction, his petition for writ of audita querela has no merit.
III. CONCLUSION
For the foregoing reasons, the petition for writ of audita querela (Doc. 1) is DENIED and Petitioner's motion for status (Doc. 6) is DENIED as moot.
The Court CERTIFIES that any appeal of this action would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). In support of this finding, the Court adopts and incorporates by reference the reasons set out above, see Baugh v. Taylor, 117 F.3d 197, 202 n.21 (5th Cir. 1997), and finds that any appeal of this action would present no legal point of arguable merit and would, therefore, be frivolous. Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983).
SO ORDERED.
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ED KINKEADE
UNITED STATES DISTRICT JUDGE