United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge
MATTER is before the Court upon Petitioner's pro se
“Petition for Writ of Audita Querela/Writ of Error
Coram Nobis Pursuant to the All Writs Act.” [Doc. 1].
No response is necessary from the Government.
September 24, 1993, after a jury trial, Petitioner was
convicted in this Court of engaging and attempting to engage
in a sexual act with a minor under the age of 12, in
violation of 18 U.S.C. § 2241(c). [Criminal Case No.
2:93-cr-00019-MR, Doc. 1-1: Judgment]. On January 10, 1994,
the Court sentenced Petitioner to 480 months'
imprisonment. [Id.]. Petitioner appealed, and on
July 14, 1995, the Fourth Circuit affirmed the conviction and
sentence in a published opinion. United States v.
Powers, 59 F.3d 1460 (4th Cir. 1995). The U.S. Supreme
Court denied certiorari on January 16, 1996. Powers v. United
States, 516 U.S. 1077 (1996).
February 9, 1999, Petitioner filed a habeas petition under 28
U.S.C. § 2254 in the Middle District of Florida,
challenging his federal judgment. That court construed the
§ 2254 petition as a motion to vacate under 28 U.S.C.
§ 2255, and transferred the action to this Court on
October 19, 2000. On January 11, 2001, this Court denied the
motion to vacate with prejudice. [Civil Case No.
2:00-cv-00246-WLO, Doc. 1].
filed a second § 2255 Motion to Vacate in this Court on
August 16, 2012, seeking relief under the Fourth
Circuit's decision in United States v. Simmons,
649 F.3d 237 (4th Cir. 2011) (en banc). [Civil Case No. No.
2:12-cv-00071-MR, Doc. 1]. The Court denied and dismissed the
Motion on September 6, 2013. [Id., Doc. 3.
filed the instant pro se Petition on May 25, 2017.
[Doc. 1]. In his Petition, he alleges the Federal Bureau of
Prisons' (“BOP”) has failed to provide him
adequate medical care. [Doc. 1 at 4-5]. Specifically,
Petitioner alleges he suffers from asthma, which has worsened
with age. Since his incarceration, he has developed COPD and
acid reflux, which he claims is aggravated by the inhalers he
has to use to breathe. Petitioner asserts that the BOP has a
policy requiring inmates to purchase their medication through
the prison commissary at a “30% mark up” and that
Health Services at the prison where he is incarcerated
confiscates all medication provided by doctors outside the
prison and replaces them with ineffective generic medication.
[Id. at 4-5]. Petitioner contends that he cannot
receive adequate medical care or afford to purchase
medication at the prison. He seeks to have his sentence
vacated and to be released from custody on these grounds.
[Id. at 8].
common law writ of audita querela permitted a defendant to
obtain ‘relief against a judgment or execution because
of some defense or discharge arising subsequent to the
rendition of the judgment.'” United States v.
Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990) (quoting 11 C.
Wright & A. Miller, Federal Practice and Procedure §
2867, at 235 (1973)). Put another way, “a writ of
audita querela is used to challenge a judgment that was
correct at the time rendered but which is rendered infirm by
matters which arise after its rendition.” United
States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir.
2002) (internal quotation marks omitted). The authority of
federal courts to recognize common law post-conviction
remedies is found in the All Writs Act, 28 U.S.C. §
1651(a) (2016), which provides that federal courts “may
issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and
principles of law.” See United States v.
Morgan, 346 U.S. 502, 506-10 (1954) (holding that §
1651(a) authorized the district court to entertain the
defendant's motion pursuant to the common law writ of
the writ of audita querela has been abolished in civil cases,
see Fed. R. Civ. P. 60(e), a number of circuits have
recognized that the writ still may be available in criminal
cases to the extent that it fills in gaps in the current
system of post-conviction relief. See Massey v. United
States, 581 F.3d 172, 174 (3d Cir. 2009) (collecting
cases). Section 1651 “is a residual source of authority
to issue writs that are not otherwise covered by statute,
” and, “[w]here a statute specifically addresses
[a] particular issue . . ., it is that authority, and not the
All Writs Act, that is controlling.” Carlisle v.
United States, 517 U.S. 416, 429 (1996) (internal
quotation marks omitted). Thus, prisoners may not resort to
the All Writs Act when their challenges would be cognizable
under § 2255 or to otherwise circumvent the statutory
limits on collateral attacks. See United States v.
Rhines, 640 F.3d 69, 72 (3d Cir. 2011); United
States v. Gamboa, 608 F.3d 492, 494-95 (9th Cir. 2010);
cf. In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir.
1997) (en banc) (stating that § 2255 is not inadequate
or ineffective to test legality of detention merely because
petitioner is unable to obtain relief under § 2255).
Petitioner's claim would not be cognizable under §
2255 because Petitioner does not allege any legal defect
related to either his trial or the sentence imposed. Instead,
he seeks to have his sentence vacated on equitable grounds,
arguing that he should be released so that he may obtain
necessary treatment for his chronic illnesses. [Doc. 1 at 8].
courts of appeal that have addressed the issue of where
audita querela might fill a gap in the current system of
post-conviction relief have done so primarily in cases where
immigrants facing deportation because of their prior criminal
convictions have attempted to use audita querela to argue
that deportation would be an unduly harsh consequence.
See Ejelonu v. INS, 355 F.3d 539 (6th Cir. 2004),
vacated and reh'g en banc granted (July 27,
2004), appeal dismissed (Oct. 18, 2004); Doe v.
INS, 120 F.3d 200 (9th Cir. 1997); United States v.
LaPlante, 57 F.3d 252 (2d Cir. 1995); United States
v. Johnson, 962 F.2d 579 (7th Cir. 1992); United
States v. Reyes, 945 F.2d 862 (5th Cir. 1991);
United States v. Holder, 936 F.2d 1 (1st Cir. 1991);
Ayala, 894 F.2d at 427. With the exception of the
Sixth Circuit's since-vacated Ejelonu decision,
each of these immigration cases concluded that audita
querela, if available, must be brought on “legal”
rather than “equitable” grounds. Doe, 120
F.3d at 204 (“[A] writ of audita querela, if it
survives at all, is available only if a defendant has a legal
defense or discharge to the underlying judgment.”)
(footnotes omitted); LaPlante, 57 F.3d at 253
(“Audita querela is probably available where there is a
legal, as contrasted with an equitable, objection to a
conviction[.]”); Johnson, 962 F.2d at 582
(“Audita querela . . . provides relief from the
consequences of a conviction when a defense or discharge
arises subsequent to entry of the final judgment. The defense
or discharge must be a legal defect in the conviction, or in
the sentence which taints the conviction. Equities or gross
injustice, in themselves, will not satisfy the legal
objection requirement and will not provide a basis for
relief.”); Holder, 936 F.2d at 5 (“if
available at all, the writ of audita querela can only be
available where there is a legal objection to a conviction,
which has arisen subsequent to that conviction”);
Reyes, 945 F.2d at 866 (quoting Holder);
Ayala, 894 F.2d at 429 (concluding that the
“so-called ‘pure equity' variant of audita
querela finds no support in the historical definition of the
writ, ” and questioning “the authority of federal
courts to use it as a ‘gap filler' under the All
United States v. Miller, the Fifth Circuit Court of
Appeals addressed the applicability of audita querela in a
non-immigration case. 599 F.3d 484 (5th Cir. 2010). Miller
had pleaded guilty to conducting a monetary transaction with
criminally-derived funds and evading income tax. Id.
at 485. As part of his sentence, he was ordered to pay
restitution. Id. Miller subsequently learned that
the victim in the case had recovered $170, 405.00 of the
funds that Miller had embezzled and that the Government had
failed to credit this sum against his outstanding restitution
obligation. Id. at 486. Miller filed a petition for
a writ of audita querela, asserting that the district
court's restitution order had been rendered infirm by the
recovery of the funds and the Government's failure to
credit that sum against his outstanding obligation.
Id. at 486-87. The Fifth Circuit held that,
“if the writ survives, it can only be available where
there is a legal objection to a judgment which has arisen
subsequent to that judgment” and that “[p]urely
equitable grounds for relief do not justify the issuance of a
writ of audita querela." Id. at 488 (citing
Reyes, 945 F.2d at 866).
noted, Petitioner raises no legal objection to his
convictions or sentence. Petitioner, rather, asserts that the
conditions of his confinement as they may pertain to his
ability to obtain medical care, are such that in
equity he should be entitled to a reduction in his
sentence. Based upon the foregoing, the Court concludes that
Petitioner has failed to identify a legal defect or discharge
that renders ...