U.S. v. Cornett

Full title: UNITED STATES of America, Plaintiff-Appellee v. Wendell Alboyd CORNETT…

Court: United States Court of Appeals, Fifth Circuit

Date published: Aug 31, 2009

350 F. App'x 849 (5th Cir. 2009)

Opinion

No. 08-20777 Summary Calendar.

August 31, 2009.

James Lee Turner, Assistant U.S. Attorney, U.S. Attorney's Office, Houston, TX, for Plaintiff-Appellee.

Wendell Alboyd Cornett, Florence, CO, pro se.

Appeal from the United States District Court for the Southern District of Texas, USDC Nos. 4:00-CV-4308, 4:95-CR-265-1.

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:[fn*] [fn*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

Wendell Alboyd Cornett, federal prisoner # 04675-081, has moved for a certificate of appealability (COA) in his appeal from the district court's denial of his petition for a writ of audita querela. Cornett sought the writ to challenge sentences imposed in 1998 on offenses related to drug trafficking. Cornett has also moved to proceed in forma pauperis (IFP) on appeal.

A COA is not required for Cornett to appeal the denial of a writ of audita querela. See 28 U.S.C. § 2253(c). Accordingly, Cornett's request for a COA is denied as unnecessary.

Cornett contends that his sentences, imposed prior to the decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), violate the Fifth, Sixth, and Eighth Amendments because the district court, rather than the jury, determined facts that resulted in a sentence of life imprisonment. He asserts that, at the time of his direct appeal, there was no existing legal basis to challenge the constitutionality of the Sentencing Guidelines. Cornett, who has previously litigated a 28 U.S.C. § 2255 motion, argues that he may pursue relief through the writ of audita querela.

The district court correctly denied Cornett's petition for a writ of audita querela because Cornett may pursue relief under 28 U.S.C. § 2255. See Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). Cornett's motion to proceed in forma pauperis is denied, and the appeal is dismissed as frivolous. See 5TH CIR. R. 42.2.

COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED.