Opinion
19-30254
10-08-2021
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCIS SCHAEFFER COX, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted June 17, 2021 Anchorage, Alaska
Appeal from the United States District Court for the District of Alaska Robert J. Bryan, District Judge, Presiding D.C. No. 3:11-cr-00022-RJB-1
Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
Appellant Francis Schaeffer Cox (Cox) appeals the district court's denial of his motion for a writ of audita querela. Cox was convicted of, among other things, conspiracy to murder a federal officer in violation of 18 U.S.C. §§ 1117 and 1114 and solicitation to murder a federal officer in violation of 18 U.S.C. §§ 373 and 1114. On appeal, a previous panel affirmed the conspiracy conviction, but reversed the solicitation conviction. See United States v. Cox, 705 Fed.Appx. 573, 575 (9th Cir. 2017). Cox maintains that the panel's reversal of the solicitation charge undermined the "jurisdictional foundation" of the conspiracy charge.
1. Reviewing de novo, we affirm the denial of Cox's motion seeking a writ of audita querela. See United States v. Gamboa, 608 F.3d 492, 494 (9th Cir. 2010). Cox is precluded from seeking the writ because he may pursue the same relief by way of a habeas petition. See id. at 494-95. Cox concedes that he may file a habeas petition in the future, and provides no authority to support the preemptive issuance of a writ of audita querela prior to filing a habeas petition.
2. Cox reiterates his insufficiency-of-the-evidence argument, but the parties agree that we are bound by the prior panel's decision rejecting this claim. For the reasons set forth in the prior disposition, we again reject Cox's insufficiency argument. See Cox, 705 Fed.Appx. at 576.
AFFIRMED.