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Weaver v. United States

United States District Court, N.D. Iowa, Western Division

August 16, 2018

RONALD WEAVER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Leonard T. Strand, Chief Judge.

         Presently 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.

         I. BACKGROUND

         In a 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 Cir. 2015).

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.

         In his 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 Sentencing Guidelines.

         II. FILING FEE

         Weaver 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.[1]

         III. AUDITA QUERELA STANDARD

         As the 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).

         IV. ANALYSIS

         Weaver's 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 ...

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