Opinion
Case No. CR-98-94-D
08-06-2012
UNITED STATES OF AMERICA, Plaintiff, v. IRIS COLLETTE JACKSON, Defendant.
ORDER
Before the Court is Defendant Iris Collette Jackson's pro se filing of a document entitled, "Audita Querela" [Doc. No. 189]. Liberally construed, the Court understands this filing to be a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651(a). Defendant seeks relief from a prison sentence first imposed in December, 1998, for numerous drug offenses involving cocaine base. Her initial 360-month sentence was later vacated and remanded in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). See Jackson v. United States, 531 U.S. 1033 (2000); see also United States v. Jackson, 240 F.3d 1245 (10th Cir. 2001) . Upon resentencing in February, 2002, Defendant received the same prison sentence, which was affirmed in March, 2003. See United States v. Jackson, 60 F. App'x 726 (10th Cir.), cert. denied, 540 U.S. 851 (2003). Recently, on April 19, 2012, the Court ordered the reduction of Defendant's sentence pursuant to 18 U.S.C. § 3582(c)(2) based on Amendment 750 to the United States Sentencing Guidelines.
The Court granted a Joint Motion filed through defense counsel that had been appointed to assist Defendant with a previously filed pro se motion.
By her petition, Defendant seeks to obtain the benefit of the Supreme Court's ruling in United States v. Booker, 543 U.S. 220 (2005), that the United States Sentencing Guidelines are merely advisory and not mandatory. She expressly seeks relief under the All Writs Act because the one-year time limit for her to file a motion under 28 U.S.C. § 2255 had expired before Booker was decided. Defendant asserts that this means of seeking relief was authorized by the court of appeals in United States v. Torres, 282 F.3d 1241 (10th Cir. 2002), because she has no remedy under § 2255.
Defendant is mistaken. The court of appeals held in Torres that "a writ of audita querela is not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255." See Torres, 282 F.3d at 1245 (internal quotation and citations omitted). "The exclusive remedy for testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255." Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) ("28 U.S.C. § 2255 is the exclusive remedy for a federal prisoner attacking the legality of his detention."); see also United States v. Guerrero, 415 F. App'x 858, 859 (10th Cir. 2011). Because Defendant is challenging the validity of her sentence, a § 2255 motion is the proper remedy; she cannot avoid the statute "by simply styling a petition under a different name." Torres, 282 F.3d at 1246; see also United States v. Gonzalez, 152 F. App'x 743, 746, (10th Cir. 2005). The fact that a § 2255 motion would be time-barred does not render that remedy inadequate or ineffective. See Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010); Caravalho, 177 F.3d at 1178.
Unpublished opinions are cited in this Order pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1.
Because Defendant clearly requests a writ and argues that § 2255 relief is foreclosed by the limitations period of § 2255(f)(3), the Court declines to recharacterize the petition as a § 2255 motion.
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In any event, assuming that a writ of audita querela were available to Defendant, she does not allege circumstances that would warrant this extraordinary remedy. See United States v. Thody, 460 F. App'x 776, 778, n.3 (10th Cir. 2012) (noting that the availability of this writ remains an open question); Bedolla-Izazaga v. United States, 413 F. App'x 20, 21 (10th Cir. 2011( (same). A lack of diligence in pursuing relief may stand as a bar to issuance of a writ. See United States v. Ballard, 334 F. App'x 141, 143 (10th Cir. 2009); see also Thody, 460 F. App'x at 778. Further, the claim that Defendant seeks to raise is foreclosed by binding precedent holding that Booker does not apply retroactively to criminal judgments that became final before January 12, 2005. See United States v. Bellamy, 411 F.3d 1182, 1184 (10th Cir. 2005).
For these reasons, the Court finds that Defendant's request for a writ of audita querela should be denied. Under the circumstances, the Court declines to construe the request as one for relief under § 2255. See United States v. Valadez-Camarena, 402 F.3d 1259, 1261 (10th Cir. 2005).
IT IS THEREFORE ORDERED that Defendant's petition for a writ of audita querela [Doc. No. 189] is DENIED.
IT IS SO ORDERED this 7th day of August, 2012.
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TIMOTHY D. DEGIUSTI
UNITED STATES DISTRICT JUDGE