United States District Court, N.D. Iowa, Western Division
Leonard T. Strand, Chief Judge.
before me is a pro se motion styled as a “petition for
writ of audita querela or other appropriate relief”
(Doc. No. 1) filed by Ronald Weaver.
recent order, the Honorable Mark W. Bennett, United States
District Judge, summarized Weaver's history:
On October 25, 2006, in a Second Superseding Indictment,
Weaver and codefendants were charged with conspiracy to
manufacture and distribute and possession with intent to
distribute crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 846, and other drug
offenses. Following a jury trial, Weaver was convicted of
conspiracy to manufacture and distribute and possession with
intent to distribute crack cocaine. Judge Donald E.
O'Brien sentenced Weaver to 300 months'
incarceration. Weaver appealed his conviction and sentence.
Weaver's appeal was denied. See United States v.
Weaver, 554 F.3d 718, 719 (8th Cir. 2009). After his
direct appeal was denied, Weaver moved to vacate his sentence
under 28 U.S.C. § 2255(a). Judge O'Brien found that
Weaver's sentencing counsel was ineffective for failing
to move for a new trial before sentencing, and vacated
Weaver's conviction and ordered a new trial. The United
States appealed. The Eighth Circuit Court of Appeals reversed
Judge O'Brien's order vacating Weaver's
conviction and reinstated his conviction and sentence.
See Weaver v. United States, 793 F.3d 857, 865 (8th
C17-4048-MWB, Doc. No. 3 at 1-2. On February 22, 2016, Weaver
filed a second motion pursuant to 28 U.S.C. § 2255.
C16-4014-MWB, Doc. No. 1. Judge Bennett denied that motion as
a second successive petition without receiving leave of the
Eighth Circuit Court of Appeals. Id. at Doc. No. 2.
On May 23, 2016, Weaver, along with other petitioners, filed
a third motion pursuant to 28 U.S.C. § 2255 relying on
Johnson v. United States, 135 S.Ct. 2551 (2015).
C16-4072-MWB, Doc. No. 1. Judge Bennett also denied that
motion as a second successive petition. Id. at Doc.
No. 6. On August 22, 2017, Weaver filed a fourth motion
pursuant to 28 U.S.C. § 2255, relying on United
States v. Madkins, 866 F.3d 1136, 1143 (10th Cir. 2017).
C17-4048-MWB, Doc. No. 1. Judge Bennett again denied that
motion as a second successive petition. Id. at Doc.
No. 3. The Eighth Circuit ultimately denied Weaver's
motion to file a second successive habeas petition in that
case. Id., at 5.
present motion for a writ of audita querela, Weaver raises
the same argument related to United States v.
Madkins, 866 F.3d 1136, 1143 (10th Cir. 2017) that he
made in case C17-4048-MWB, specifically that he has been
mischaracterized as a career offender under the United States
filed his case on August 6, 2018, and did not pay a filing
fee. See 28 U.S.C. § 1914(a) (requiring filing
fee). For the reasons set out below, I find the petition for
a writ audita querela must be dismissed because the claim
Weaver is attempting to raise must be brought as a 28 U.S.C.
§ 2255 motion. However, if Weaver's writ of audita
querela was cognizable as a distinct cause of action, he
would be required to pay a filing fee.
AUDITA QUERELA STANDARD
Eighth Circuit Court of Appeals has explained, “[a]
writ of audita querela is a common law writ ‘available
to a judgment debtor who seeks a rehearing of a matter on
grounds of newly discovered evidence or newly existing legal
defenses.'” United States v. Boal, 534
F.3d 965, 967 n.2 (8th Cir. 2009) (citing Black's Law
Dictionary (8th ed. 2004)). Under the All Writs Act, 28
U.S.C. § 1651(a), ancient writs survive in the modern
statutory system, but where a statute specifically addresses
the particular issue at hand, it is that authority, and not
the All Writs Act, that is controlling. United States v.
Miller, 599 F.3d 484, 487-88 (5th Cir. 2010) (explaining
that, because United States v. Morgan, 346 U.S. 502
(1954) concluded that the writ of coram nobis was still
available in criminal cases under the All Writs Act, 28
U.S.C. § 1651(a), “where needed to fill a gap in
the federal post-conviction remedial scheme . . . we have, as
have several other circuits, acknowledged, with some
reservation, that the writ of audita querela might also
survive in criminal adjudications, if there is a gap for it
to fill.”). To the extent that a petition for a writ of
audita querela remains available to challenge a criminal
conviction or sentence, it “is not available where
other cognizable remedies exist.” United States v.
Feist, 346 Fed.Appx. 127 (8th Cir. 2009) (citing
United States v. Richter, 510 F.3d 103, 104 (2d Cir.
2007) (per curiam)); see also Carlisle v. United
States, 517 U.S. 416, 429 (1996). Put another way,
“to the extent that audita querela exists in the
criminal context, it would only be to plug a gap in the
system of federal postconviction remedies- and it is doubtful
that such a gap exists. See United States v.
Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982).”
United States v. Rodriguez-Mendez, 2018 WL 1767852,
at *2 (D. Neb. 2018) (cleaned up).
claim fails because it is improperly brought as a writ of
audita querela. In the context of a petitioner who
characterized a § 2255 issue as a § 2241 motion,
the Eighth Circuit stated:
A petitioner who seeks to challenge his sentence or
conviction generally must do so in the sentencing court
through § 2255. . . The requirement that a petitioner
must first demonstrate that § 2255 is “inadequate
or ineffective” comes from § 2255's savings
clause . . . such cases, the petitioner has the burden ...