United States District Court, W.D. North Carolina, Asheville Division
DARIAN K. ROBINSON, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:07-cr-00032-MR-4
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Petitioner's
“Petition for Writ of Audita Querela Pursuant to 28
U.S.C. § 1651” [Doc. 1] and Petitioner's
“Motion for Appointment of Counsel” [Doc. 2]. For
the reasons that follow, the Court dismisses the petition and
denies Petitioner's motion for the appointment of
9, 2007, Petitioner pleaded guilty in this Court to
conspiracy to possess with intent to distribute cocaine base.
[Criminal Case No. 1:07-cr-00032-MR-4 (“CR”),
Doc. 79]. Petitioner filed his first motion to vacate
pursuant to 28 U.S.C. § 2255 on December 28, 2009. [CR
Doc. 199]. This Court denied Petitioner's motion with
prejudice on the merits on December 28, 2010. [CR Doc. 201].
Petitioner filed a second motion to vacate pursuant to §
2255 on August 30, 2012 [CR Doc. 253], and the Court
dismissed this motion as an unauthorized successive petition
on January 16, 2013. [CR Doc. 260]. Petitioner filed a third
motion to vacate on February 24, 2014 [CR Doc. 292], and the
Court dismissed this motion as an unauthorized successive
petition on June 9, 2014. [CR Doc. 302]. Petitioner filed the
instant petition for writ of audita querela on June 16, 2017,
in which he seeks relief under the Supreme Court's
decision in Mathis v. United States, 136 S.Ct. 2243
(2016). In his petition, Petitioner argues that his sentence
was enhanced pursuant to 21 U.S.C. § 851 because his
prior conviction in the State of New Jersey was treated as a
drug trafficking offense, but that Mathis shows this
conclusion to be erroneous.
STANDARD OF REVIEW
to Rule 4(b) of the Rules Governing Section 2255 Proceedings,
sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the
record of prior proceedings” in order to determine
whether a petitioner is entitled to any relief. After having
considered the record in this matter, the Court finds that no
response is necessary from the United States. Further, the
Court finds that this matter can be resolved without an
evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
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 otherwise be
cognizable under § 2255 but for 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).
the nature of the Petitioner's claim is one that would be
cognizable under § 2255. That provision allows a
prisoner to contest his sentence by claiming “that the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack ....” 28 U.S.C.
§ 2255(a). Here, the Petitioner claims that, in light of
Mathis, his sentence was improperly enhanced and his
mandatory minimum sentence was unlawfully increased under 21
U.S.C. § 851 based on his prior New Jersey drug
conviction. While such an attack would not likely be
successful, see Stewart v. United States, Nos.
5:14-CR-90-FL-1, 5:16-CV-432-FL, 2017 WL 3025867, at *8 (E.D.
N.C. July 17, 2017) (noting that Mathis was not made
retroactively applicable to cases on collateral review), such
an issue is one that must be brought, if at all, pursuant to
§ 2255. Accordingly, the writ of audita querela is not
available to him as an alternative. See Coleman v. United
States, No. 7:07cv346-3-MU, 2007 WL 4303717, at *2 (W.D.
N.C. Dec. 10, 2007) (“The fact that § 2255 relief
is now unavailable to Petitioner because of the Antiterrorism
and Effective Death Penalty Act's limitation of the right
to file a second or successive petition, does not make §
2255 unavailable to him for purposes of being permitted to
file a writ of audita querela.”), aff'd,
274 Fed. App'x 340 (4th Cir. 2008).
extent that Petitioner's petition could be construed as a
new motion to vacate under § 2255, the petition would
still be subject to dismissal. Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” Petitioner has previously
filed three § 2255 petitions. Thus, Petitioner must
first obtain an order from the United States Court of Appeals
for the Fourth Circuit before this Court will consider any
successive petition under 28 U.S.C. § 2255. Petitioner
has not shown that he has obtained the permission of the
Fourth Circuit to file a successive petition. See
also 28 U.S.C. § 2255(h) (“[a] second or
successive motion must be certified as provided in section
2244 by a panel of the appropriate court of appeals.”).
Accordingly, this Court is without jurisdiction to consider
Petitioner's petition under § 2255. See Burton
v. Stewart, 549 U.S. 147, 153 (2007) (holding that
failure of petitioner to obtain authorization to file a
“second or successive” petition deprived the
district court of jurisdiction to consider the second or
successive petition “in the first place.”).
also moves the Court for the appointment of counsel to
represent him in this post-conviction proceeding. [Doc. 2].
Prisoners have no constitutional right to counsel in a
post-conviction proceeding. Pennsylvania v. Finley,
481 U.S. 551, 555-56 (1987); Rouse v. Lee, 339 F.3d
238, 250 (4th Cir. 2003), cert. denied,
541 U.S. 905 (2004). Nonetheless, the Court may appoint
counsel to represent a habeas petitioner when the interests
of justice so require and the petitioner is financially
unable to obtain representation. See 18 U.S.C.
§ 3006A(a)(2)(B). In the instant case, however,
Petitioner has failed to demonstrate that the interests of
justice warrant the appointment of counsel. See United
States v. Riley, 21 F. App'x 139, 141-42
(4th Cir. 2001). Accordingly, Petitioner motion
for the appointment of counsel is denied.
reasons stated herein, this action is dismissed, and
Petitioner's motion for the ...