Opinion
95 CR 50024 — 3
September 9, 2003
MEMORANDUM OPINION AND ORDER
Defendant, Timothy Melton, filed a petition for a writ of audita querela, seeking to challenge his sentence based on his trial counsel's alleged ineffectiveness in failing to inform him of this court's discretion to reject the government's offer pursuant to Fed.R.Crim.P. 11(e)(1)(C). The government has filed a response, and defendant has replied.
While the Seventh Circuit has suggested that a writ of audita querela might be available in a criminal case to "plug a gap in the system of federal postconviction remedies," it is doubtful such a gap exists given the availability of 28 U.S.C. § 2255 to in-custody defendants and the writ of coram nobis to those no longer in custody. U.S. v. Johnson, 962 F.2d 579, 583 (7th. Cir. 1992);U.S. v. Kimberlin, 675 F.2d 866, 869 (7th. Cir. 1982). Additionally, a writ of audita querela cannot be used to enable a defendant to file a section 2255 motion without complying with the rules governing such motions. Kimberlin, 675 F.2d at 869.
In the present case, defendant seeks to challenge his sentence while he remains in custody. Thus, his only potential avenue or relief is section 2255. The court finds no authority that would allow an in-custody defendant to utilize the writ of audita querela because the defendant chooses not to pursue a remedy under section 2255 or is otherwise prohibited from pursuing relief under that provision. The writ of audita guerela cannot be used for the sole purpose of circumventing orderly procedure. Kimberlin, 675 F.2d at 869. Therefore, the court denies defendant's petition for writ of audita querela without reaching the merits of the petition.