Opinion
Case No. 4:95CR00019-05 JLH.
September 15, 2009
OPINION AND ORDER
Dwayne Smith has filed a petition for writ of error audita querela under 28 U.S.C. § 1651, the All Writs Act. Smith asserts that his life sentence, which was imposed in 1996, is unconstitutional under the Supreme Court's subsequent decision in United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). Smith asks this Court to reopen his case and resentence him in light of Booker. For the following reasons, Smith's petition is denied.
The writ of audita querela is a common law writ to obtain equitable relief from a legal judgment because of some defense arising after entry of a judgment. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) (citing 7 AM. JUR. 2d Audita Querela § 1 (1997)). The writ survives in the criminal context under the All Writs Act and United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954), but only to the extent that it fills a "gap" in the current systems of post-conviction relief. Id. "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Carlisle v. United States, 517 U.S. 416, 429, 116 S. Ct. 1460, 1467, 134 L. Ed. 2d 613 (1996) (quoting Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43, 106 S. Ct. 355, 361, 88 L. Ed. 2d 189 (1985)). Where a prisoner seeks to challenge his sentence, he generally must do so under 28 U.S.C. § 2255, unless he can show that the remedy under § 2255 would be inadequate or ineffective. Abdullah v. Hedrick, 392 F.3d 957, 959-60 (8th Cir. 2004). Section 2255 is not inadequate or ineffective merely because the claim was raised in a § 2255 motion and denied. Id.
In Kessack v. United States, the Western District of Washington held that the writ of audita querela was available to a prisoner challenging the constitutionality of a sentence imposed prior to Booker "because Booker announced a new rule of constitutional law that was unforeseeable at the time of his sentencing, appeal, and habeas petitions." Kessack v. United States, 2008 WL 189679, at *6 (W.D. Wash. Jan. 18, 2008). However, the petitioner in Kessack had not sought earlier relief under § 2255, and his case presented "truly extraordinary circumstances and equities." Id. at *5. The court did not address whether Booker could apply retroactively. Id. at *6. In United States v. Cox, Judge Thomas Eisele, sitting in this district, distinguished Kessack and held that a writ of audita querela was inappropriate where Booker did not affect the statute pursuant to which the petitioner was sentenced, meaning that there was "no legal defect or fundamental error in the original proceeding or in the sentence." United States v. Cox, 2008 WL 927695, at *1 (E.D. Ark. Apr. 3, 2008).
As did the petitioner in Cox, Smith relies primarily on Kessack, and, as was the case in Cox, the writ is inappropriate here. Smith has not shown that 28 U.S.C. § 2255 is inadequate or ineffective. He has already filed two motions for post-conviction relief pursuant to that statute. This Court granted Smith's motion to vacate and set aside his life sentence pursuant to § 2255 on June 21, 1999, for ineffective assistance of counsel. (Docket #309). On September 27, 1999, he was again sentenced to life in prison. (Docket #333). The Eighth Circuit affirmed. United States v. Smith, 232 F.3d 650 (8th Cir. 2000). On June 19, 2001, this Court denied Smith's second § 2255 motion. (Docket #361). The Eighth Circuit then denied his application for a certificate of appealability on February 4, 2002. (Docket #365).
After the Supreme Court's holding in Booker, Smith filed a motion arguing that his sentence had been unconstitutionally enhanced. (Docket #366). This Court denied that motion because Booker did not apply to criminal convictions that became final prior to Booker, citing Never Misses a Shot v. United States, 413 F.3d 781, 783 (8th Cir. 2005). (Docket #367).
After the Supreme Court's holding in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856, 166 L. Ed. 2d 856 (2007), Smith filed another motion arguing that his sentence was unconstitutionally enhanced. (Docket #369). This Court again denied the motion because Cunningham did not apply retroactively to convictions that were final prior to its publication. (Docket #371).
The Supreme Court held that California's sentencing law, which authorized the judge, not the jury, to find facts by a preponderance fo the evidence violated a defendant's right to a jury trial. Cunningham, 549 U.S. at 288-89, 127 S. Ct. at 869.
Smith filed his petition for writ of audita querela on June 16, 2009, arguing that traditional post-conviction relief is unavailable and that Booker has made his sentence unconstitutional. Smith has sought relief under § 2255 more than once, and obtained the relief sought on one occasion. Smith previously argued that Booker should apply retroactively, and this Court has already rejected that argument. Booker did not alter the statute pursuant to which Smith was sentenced. There was no "legal defect or fundamental error in the original proceeding or in the sentence" Smith received. Cox, 2008 WL 927695, at *1. Furthermore, there is no "gap" to be filled in Smith's access to post-conviction relief, so a writ of audita querela would not be appropriate. Cf. Oriakhi v. United States, 2008 WL 1781017 (D. Md. April 16, 2008).
For the foregoing reasons, Smith's petition for writ of error audita querela is DENIED. Docket #373. Smith's application to proceed without prepayment of fees is DENIED as moot. Docket #374.
IT IS SO ORDERED.