Opinion
2:94-CR-0036 (03)
November 5, 2002
REPORT AND RECOMMENDATION TO DENY PETITIONER'S PETITION FOR THE COURT TO ORDER A WRIT OF CORAM NOBIS OR A (SIC) AUDITA QUERELA
On this date came for consideration the above entitled motion filed by defendant OMAR ARREOLA-RAMOS on February 3, 2000. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge recommends the motion be DENIED.
I. FACTS AND PROCEDURAL HISTORY
On September 5, 1995, the government charged defendant, in a superseding information, with two criminal counts. Count One charged that on or about January 15, 1994, defendant "knowingly used and carried a firearm . . . during and in relation to a drug trafficking crime," in violation of 18 U.S.C. § 924(c)(1). Count Two charged that on or about June 15, 1994, defendant "knowingly and intentionally used a communication facility" in causing or facilitating the commission of an act constituting a felony under the Controlled Substances Act, to wit, possession with intent to distribute cocaine. On that same date, defendant, with his counsel, signed a plea agreement wherein defendant waived certain specified rights in exchange for his plea of guilty to the two-count superseding information. Also on the same date, defendant pleaded guilty to the superseding information. On December 5, 1995, the district judge assessed defendant's punishment at a term of four (4) years confinement in a federal institution on Count 2, and five (5) years on Count 1, the 5-year sentence to run consecutive to the 4-year sentence imposed for Count 2. Judgment was entered accordingly. Defendant did not directly appeal his conviction or sentence.
On February 28, 1996, defendant filed a motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. On September 6, 1996, defendant filed a motion to supplement his motion to vacate which was granted October 4, 1996. On July 17, 1998, the undersigned United States Magistrate Judge issued a Report and Recommendation recommending that defendant's motion to vacate be denied as to defendant's claims of double jeopardy and ineffective assistance of counsel. On September 30, 1998, the undersigned entered a Supplemental Report and Recommendation recommending denial of defendant's claim related to Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). On November 12, 1998, these recommendations were adopted by the United States District Judge and the motion to vacate was denied. On December 14, 1999, the United States Court of Appeals, Fifth Circuit, affirmed the Order of the District Court.
On February 3, 2000, defendant filed the instant motion requesting the Court to issue a Writ of Error Coram Nobis or Audita Querela.
II. DISCUSSION
The writ of audita querela, "[W]as a common law writ to afford relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution." Doe v. Immigration and Naturalization Service, 120 F.3d 200, 202 (9th Cir. 1997) citing United States v. Fonseca-Martinez, 36 F.3d 62, 63-64 (9th Cir. 1994). The writ is an obscure "[C]ommon law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment [due to] some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise." State of Texas v. Vasquez, 889 S.W.2d 588, 590 quoting BLACK'S LAW DICTIONARY 131 (6th ed. 1990).
Effective 1948, Federal Rule of Civil Procedure 60(b) was amended and thereby the writ was abolished, as were several other common law writs including coram nobis, in the context of civil judgments. United States v. Reyes, 945 F.2d 862, 865 (5th Cir. 1991). In 1954 however, the United States Supreme Court revived a similar but previously abolished common law writ, i.e., the writ of coram nobis, in the context of federal criminal cases pursuant to the All Writs Act, 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); Id. The Supreme Court holding was that, "The writ of coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate a criminal conviction in circumstances where the petitioner can demonstrate civil disabilities as a consequence of the criminal conviction, and that the challenged error is of sufficient magnitude to justify the extraordinary relief." (emphasis added) Jimenez v. Trominski, 91 F.3d 767, 768 (5th Cir. 1996) citing United States v. Castro, 26 F.3d 557 (5th Cir. 1994). The ruling provided a remedy where one was not available, for if a person no longer in custody was still suffering some constitutional deprivation, the standard writs of habeas corpus pursuant to 28 U.S.C. § 2241 and § 2255 would not provide a remedy.
The relevant portion of Rule 60 reads, "writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action
As for the writ of audita querela, it is unclear whether the writ survived its 1948 demise. As stated in Reyes, "[B]ecause the Supreme Court held that the writ of coram nobis was still available in criminal proceedings, it is likely that Rule 60(b) did not abolish the writ of audita querela to the extent it might otherwise have been available to attack a criminal conviction." Reyes, 945 F.2d at 865. The court declined to decide the issue. Id. Likewise in the case at bar, the undersigned Magistrate Judge declines to decide the issue herein for the following reasons.
Defendant, in his motion, avers that he has no other postconviction remedy available to him because, "the 2255 petition and statute, in the case at bar, has (sic) turned out to be inadequate and ineffective." Petition at 3. Specifically, defendant appears to claim the District Court treated his supplemental 2255 motion as successive and thus he was not afforded a proper opportunity to present all his claims. The record does not support such allegation. The undersigned issued two (2) Report and Recommendations, one on defendant's initial claims and another on his supplemental claim. The District Judge adopted both recommendations and denied defendant relief.
Moreover, "a prior unsuccessful § 2255 motion is insufficient, in and of itself, to show the inadequacy or ineffectiveness of the remedy." Kinder v. Purdy, 2000 WL 1126401 (5th Cir. 2000) quoting McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979). Additionally, "A defendant challenging his conviction may not style his motion as a petition for a writ of audita querela simply to evade the Supreme Court's painstakingly formulated `retroactivity rules' governing § 2255 motions." Torres-Montalvo v. Department of Justice, 1999 WL 825533 (D.C. Cir. 1999).
Defendant has not demonstrated that Section 2255 relief was unavailable to him and for these reasons, it is the opinion of the undersigned Magistrate Judge that defendant's motion be denied.
III. RECOMMENDATION
Based upon the facts outlined above, it is the opinion and RECOMMENDATION of the Magistrate Judge to the United States District Judge that the motion for leave to file a Writ of Error Audita Querela filed by defendant OMAR ARREOLA-RAMOS be DENIED.
IV. INSTRUCTIONS and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a copy of this Report and Recommendation to defendant by certified mail, return receipt requested.
Any party may file objections to this Report and Recommendation within fourteen (14) days after the date of its filing. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Defendant shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. Defendant's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.