United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
D. Schroeder United States District Judge.
the court is a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255 or, in the
alternative, petition for writ of audita querela pursuant to
the All Writs Act, 28 U.S.C. § 1651(a) filed by
Petitioner Freddy Aguilera-Quinjano. (Docs. 1, 2 in case
2:85CR98-13.) For the reasons set forth below, the motion
will be denied.
was indicted in the Middle District of North Carolina
(“MDNC”) on July 10, 1985. The superseding
indictment charged Petitioner with several drug offenses:
conspiring to manufacture and possessing with intent to
distribute approximately 204 kilograms of cocaine
hydrochloride in violation of 21 U.S.C. § 846 (Count
One); manufacturing approximately 200 kilograms of cocaine
hydrochloride in violation of 21 U.S.C. § 841(a)(1)
(Count Five); and possessing with intent to distribute
approximately 200 kilograms of cocaine hydrochloride in
violation of 21 U.S.C. § 841(a)(1) (Count Six).
Petitioner pleaded guilty to Count One of the indictment on
February 5, 1990. The court sentenced Petitioner on June 25,
1990, to a term of fifteen years imprisonment, to run
concurrently with a thirty-year sentence already imposed by
the United States District Court for the Northern District of
New York (“NDNY”) on August 16,
1989.Judgment was entered on July 3, 1990.
did not appeal his MDNC conviction and sentence. His present
motion, filed January 26, 2015 - some twenty-five years after
his conviction - is therefore untimely unless a new one-year
limitation period was triggered by one of the events set
forth in 28 U.S.C. § 2555(f)(2)-(4).
claims that he is timely under 28 U.S.C. § 2255(f)(3),
which runs the one-year limitation period from “the
date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases
on collateral review.” Petitioner argues that his
limitation period began on January 27, 2014, when the Supreme
Court decided Burrage v. United States. 134 S.Ct.
881, 187 L.Ed.2d 715 (2014). According to Petitioner,
Burrage set forth a “new
‘substantive' change in its jurisprudence,
regarding [21 U.S.C.] §§ 846 and 841(a)(1) and
their relationship to [21 U.S.C.] § 841(b).” (Doc.
2 at 3.) Petitioner also contends that under Burrage
he was erroneously sentenced beyond one year of imprisonment
because the controlled substance involved was not identified
in the indictment or found by a jury. He argues that he is
entitled to relief from the “erroneously imposed”
judgment. (Doc. 2 at 2.) The Government responded to
Petitioner's motion, urging dismissal. (Doc. 9.)
Petitioner was issued a Roseboro letter notifying
him of his right to file a reply in opposition to the
Government's response (Doc. 10), but he has not done so.
courts have held that Burrage did not recognize a
new constitutional right made retroactively applicable to
cases on collateral review. But the court need not
definitively decide that question here, because it is
patently clear that Burrage has no application to
held that the Controlled Substances Act's twenty-year
mandatory minimum sentence for defendants whose distribution
of Schedule I or II drugs results in a user's death or
serious bodily injury may only be applied when the drug was
the but-for cause of the victim's death or injury. 134
S.Ct. at 892. Petitioner was not sentenced under that
provision because it was not added to the Controlled
Substances Act until after Petitioner's conviction.
See Burrage, 134 S.Ct. at 886 (explaining that,
before Congress enacted the Anti-Drug Abuse Act, penalties
for drug offenses were tied to the type of drug and the
quantity involved, with no provision for mandatory minimum
sentences); Anti-Drug Abuse Act of 1986, 100 Stat. 3207.
Thus, Petitioner's contention that Burrage
offers him a new right in this regard is meritless.
addition, Petitioner's contention - that Burrage
somehow helps him because the indictment failed to allege,
and no jury found, a drug quantity - is factually and legally
wrong. The indictment charged in Count One that the
Petitioner “knowingly and intentionally did unlawfully
conspire” to manufacture and possess with intent to
distribute “approximately 204 kilograms of cocaine
hydrochloride a Schedule II, narcotic controlled substance,
within the meaning of Title 21, United States Code, Section
812, ” in violation of 21 U.S.C. §§ 841(a)(1)
and 846. At the time, the statute had no mandatory minimum
and had a maximum penalty of twenty years. Petitioner pleaded
guilty to this count under a plea agreement that capped his
exposure to twenty years of imprisonment. His arguments that
he was convicted by a jury (Doc. 2 at 4-5) are frivolously
false. Thus, Petitioner is factually wrong, Burrage
does not apply, and there is no other infirmity. See
Apprendi v. New Jersey, 530 U.S. 466 (2000).
Petitioner's attempt to seek alternative relief via a
writ for audita querela is meritless. Writs under the All
Writs Act are not available to defendants who are entitled to
seek relief under § 2255 but whose claims are
nevertheless time-barred. Townsend v. United States,
38 F.Supp.2d 424, 424 (D. Md. 1999).
reasons stated, Petitioner's motion is untimely and will
THEREFORE ORDERED that Petitioner's motion (Doc. 1) is
DENIED and this action is DISMISSED WITH PREJUDICE.
neither a substantial issue for appeal concerning the denial
of a constitutional right affecting the conviction nor a
debatable procedural ruling, a certificate of appealability
is not issued.