Opinion
NO. 1:98-CR-0048(1), NO. 1:08-CV-0638.
September 2, 2009
OPINION AND ORDER
This matter is before the Court on remand from the Sixth Circuit Court of Appeals (docs. 361 and 362) for this Court to determine whether a certificate of appealability is warranted in this matter.
I. Background
The facts of this case and a more detailed procedural history are set forth in this Court's Order and Opinion dated April 8, 2009 (doc. 353). In brief, on September 17, 2008, Petitioner Randall R. Neuhausser ("Petitioner"), filed a Petition for the writ of Audita Querela (doc. 338) with an accompanying Traverse Brief in support thereof (doc. 348), to which the Government responded (doc. 341). The Court found that, albeit put forth as a writ of Audita Querela, Petitioner's Petition actually constituted a second or successive habeas petition, which is governed by 28 U.S.C. §§ 2255 and 2244 (doc. 353). Having so found, this Court denied Petitioner's Petition for want of jurisdiction and transferred the matter to the Sixth Circuit Court of Appeals as a successive petition for Habeas Corpus (Id.). Petitioner appealed this Court's order denying his Petition for the writ of Audita Querela to the Sixth Circuit Court of Appeals, which court placed Petitioner's appeal in abeyance pending the issuance of a certificate of appealability from this Court (docs. 361 and 362).
In his motion, Petitioner argued that a writ of Audita Querela should be issued to allow this Court to resentence him because his current sentence is "grossly disproprotionate to the offense and jury's findings" (doc. 338). Petitioner claimed that facts which contributed to his sentence were not found by the jury beyond a reasonable doubt but were instead found by the trial court under the preponderance of the evidence standard (Id.). Using the Supreme Court's line of rulings (Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 2531 (2004); and United States v. Booker, 125 S.Ct. 738 (2005)), Petitioner argued that this method of sentencing was unconstitutional and he therefore asked this Court to issue the writ of Audita Querela so he could be resentenced using the advisory guidelines pursuant to Booker (doc. 338).
The Court did not find his arguments to be persuasive. Instead, the Court found that Petitioner's Petition should be treated as a successive Habeas petition (doc. 353). This Court stated in its Opinion and Order on the matter that it believed it to be inappropriate to allow a writ of Audita Querela to be granted when habeas relief is otherwise cognizable under § 2255 (Id.). See Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007); United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). The Court found that the relief requested by Petitioner through his motion, a correction of his sentence, is precisely the type of relief granted by a § 2255 petition (doc. 353). Further, the Court found that the fact that Petitioner was ineligible to receive relief under § 2255 did not render the statute ineffective or inadequate so as to allow the issuance of the writ of Audita Querela. See In re Jones, 226 F.3d 328, 333 (4th Cir. 2000).
Petitioner had argued that his case was analogous to a case from the Western District of Washington and urged this Court to embrace the proposition that Petitioner's motion for a writ ofAudita Querela should not be construed as a § 2255 petition (doc. 338). See Kessack v. United States, 2008 WL 189679 (W.D. Wash. January 18, 2008) (declining to construe a petition for a writ of Audita Querela as a § 2255 motion). Relying on Kessack, Petitioner contended that his circumstances present the type of extraordinary situation that allows for the issuance of a writ of Audita Querela because Booker announced a new rule of constitutional law that was unforeseeable at the time of his sentencing, appeal, and habeas petitions (doc. 338).
While this Court found that Petitioner's argument may be colorable, and the Sixth Circuit Court of Appeals may be inclined to consider its merits, the Court was not persuaded by Petitioner's arguments (doc. 353). First, the Court found,Kessack is non-binding upon the Court, and was decided due to "truly unique" facts, which the Court did not consider to be at issue in Petitioner's case (Id.). Second, this Court believed that the reasoning of the clear majority of courts that have construed Writs of Audita Querela as successive § 2255 petitions was much stronger (Id.). Furthermore, the Court was bound by the fact that Booker does not apply retroactively to cases on collateral review (Id.). Humphress v. United States, 398 F.3d 855 (6th Cir. 2005).
Having construed Petitioner's Petition for a writ of Audita Querela as a successive § 2255 petition, the Court, pursuant to the requirements of the Antiterrorism and Effective Death Penalty Act of 1996, lacked jurisdiction to hear the Application (doc. 353). See Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir. 2002). Without receiving permission to file a second or successive habeas motion from the Court of Appeals, Petitioner may not file such a motion (Id.). In re Green, 144 F.3d 384, 388 (6th Cir. 1998); Casey v. Hemingway, 42 Fed. Appx. 674 (6th Cir. 2002). The Court found that cloaking a habeas motion in a petition for a writ of Audita Querela did not save Petitioner from the requirement to seek permission from the Court of Appeals and, absent that permission, Petitioner's Petition was not properly before the Court.
II. Conclusion
Although the Court was not persuaded by Petitioner's arguments, the Court does believe that Petitioner's argument may be colorable and that reasonable jurists may find the Court's assessment of Petitioner's constitutional claims "debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, issuance of a certificate of appealability of the Court's Order (doc. 353) pursuant to 28 U.S.C. § 2253(c) is GRANTED.
SO ORDERED.