Opinion
No. CV 10-0303 JC/RHS CR 92-0038 JC.
April 14, 2010
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Petitioner's Petition For Writ Of Audita Querela (CV Doc. 1; CR Doc. 188) filed on March 31, 2010. Petitioner contends that his sentence should be reduced under the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). He specifically asks the Court not to construe the petition as a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence. The Court will grant this request because Petitioner has previously filed a § 2255 motion, and a new § 2255 motion would have to be transferred to the Court of Appeals for the Tenth Circuit or dismissed for lack of jurisdiction. See In re: Cline, 531 F.3d 1249, 1252 (10th Cir. 2008). The Court assumes arguendo that audita querela provides an avenue for the relief that Petitioner seeks.
In the captioned criminal proceeding, Petitioner was indicted and convicted under 21 U.S.C. § 841 for cocaine violations. He was given a life sentence. In 1993 the Court of Appeals for the Tenth Circuit affirmed Petitioner's conviction. See United States v. Chacon, No. 92-2212, 1993 WL 408011 (10th Cir. Oct. 14, 1993). Petitioner did not file a petition for writ of certiorari. When the applicable Sentencing Guidelines were later amended, this Court reduced Petitioner's sentence to three hundred sixty (360) months. He now argues that Booker authorizes a further reduction of his sentence.
No relief is available on Petitioner's claims for reduction of sentence under Booker. The benefit of the ruling in Booker is not available to a defendant on collateral review of a criminal conviction or sentence. The decision applies only to cases that are pending or on direct review. See Booker, 543 U.S. at 268; and see United States v. Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005); United States v. Price, 400 F.3d 844, 849 (10th Cir. 2005). As noted above, Petitioner's conviction became final in 1993, and Booker was decided in 2005. Petitioner is not entitled to relief under the Booker decision, and the Court will dismiss his petition.
IT IS THEREFORE ORDERED that Petitioner's Petition For Writ Of Audita Querela (CV Doc. 1; CR Doc. 188) filed on March 31, 2010, is DISMISSED with prejudice; and judgment will be entered.