United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge.
MATTER is before the Court on a “Petition for
Writ of Error Coram Nobis & Writ of Audita Querela,
” filed by pro se Petitioner Johnny Gonzalez. (Doc. No.
1). For the reasons that follow, the Court will deny
January 26, 2010, a jury found pro se Petitioner Johnny
Gonzalez guilty in this Court of conspiracy to commit
racketeering, in violation of 18 U.S.C. § 1962(d), and
this Court sentenced him to 360 months in prison. (Crim. No.
3:08-cr-134, Doc. No. 1412: Judgment). The Fourth Circuit
Court of Appeals subsequently affirmed Petitioner's
conviction and sentence. See United States v.
Gonzalez, 526 Fed.Appx. 270 (4th Cir. 2012). On or about
May 6, 2014, Petitioner filed a motion to vacate under 28
U.S.C. § 2255, which this Court denied on the merits on
April 21, 2015. (Civ. No. 3:14-cv-234-RJC, Doc. Nos. 15, 20).
thereafter sought authorization from the Fourth Circuit Court
of Appeals to file a successive petition, which the Fourth
Circuit denied. In re: Gonzalez, No. 16-9443 (4th
Cir. 2016). On June 16, 2016, Petitioner filed a motion in
this Court seeking authorization to file a successive
petition. (Crim. No. 3:08-cr-134, Doc. No. 1656). On July 11,
2016, this Court denied the motion, concluding that it lacked
jurisdiction to grant Petitioner's motion. (Id.,
Doc. No. 1660). Petitioner filed the current pending action
on or around January 29, 2019, seeking relief under the writs
of coram nobis and audita querela under the All Writs Act or,
alternatively, under Rule 60 of the Federal Rules of Civil
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).
Court first finds that, to the extent that Petitioner brings
this action pursuant to Rule 60 of the Federal Rules of Civil
Procedure, the Rule 60(b) motion amounts to an unauthorized,
successive petition. Next, as for Petitioner's attempt to
seek relief under alternative theories, Petitioner is not
entitled to a reduction in his sentence under any of these
alternative forms of relief. Here, Petitioner seeks
alternative relief in the form of writs of coram nobis and/or
audita querela under the All Writs Act. The Fourth Circuit
has described the writs of coram nobis and audita querela as
A writ of error coram nobis may be used to vacate a
conviction where there is a fundamental error resulting in
conviction, and no other means of relief is available.
United States v. Morgan, 346 U.S. 502, 509-11
(1954); United States v. Akinsade, 686 F.3d 248, 252
(4th Cir. 2012). The remedy is limited, however, to those
petitioners who are no longer in custody pursuant to their
convictions. Carlisle v. United States, 517 U.S.
416, 428-29 (1996); Akinsade, 686 F.3d at 252.
Further, a writ of audita querela is not available to a
petitioner when other avenues of relief are available, such
as a motion to vacate under 28 U.S.C.A. § 2255 (West
Supp. 2012). Torres, 282 F.3d at 1245; United
States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992).
That a petitioner may not proceed under § 2255 unless he
obtains authorization from this court does not alter this
conclusion. See Carrington v. United States, 503
F.3d 888, 890 (9th Cir. 2007) (“[T]he statutory limits
on second or successive habeas petitions do not create a
‘gap' in the post-conviction landscape that can be
filled with the common law writs.”).
United States v. Sessoms, No. 12-7316, 2012 WL
5520311 (4th Cir. Nov. 15, 2012). Here, Petitioner is
obviously in custody pursuant to his convictions, and he
previously challenged his convictions and sentence in a
Section 2255 motion. Therefore, the writ of coram nobis is
not available to Petitioner. Furthermore, Petitioner may not
use the writ of audita querela to avoid the statutory rules
on successive petitions. 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).