The opinion of the court was delivered by: Katharine S. Hayden, D.J.
This matter comes before the Court upon a petition for a writ of audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651. Petitioner Reginald Currie requests a modification of his sentence based on this Court's decision in United States v. Franz Copeland Sutton, No. 07-426, 2007 U.S. Dist. LEXIS 79518 (D.N.J. Oct. 25, 2007), which granted a downward sentencing variance based on the pre-sentence housing conditions at the Passaic County Jail. Currie requests that his own sentence be modified because he too was housed in the Passaic County Jail before sentencing. For the reasons discussed below, Currie's petition is denied.*fn1
On December 20, 2002, Currie pleaded guilty to a one-count criminal information charging him with bank robbery, in violation of 18 U.S.C. § 2113(a). At his sentencing hearing on January 6, 2003, Currie argued that the conditions at the Passaic County Jail warranted a "double credit" of his pre-sentence detention at the jail against his federal sentence. The Court considered, but rejected, the argument, stating:
I will agree that it's not pretty in the places where the presentenced but convicted defendants are held pending sentence. But I don't find that the conditions rise to the level of something on the cusp of an Eighth Amendment situation that would permit me as a matter of conscience to exercise that discretion, so I am denying that.
Pet. Exh A (Tr. of 1/6/03 Sentencing Hrg. at 21:1-7).
The Court sentenced Currie on June 6, 2003 to a term of 158 months' imprisonment pursuant to the then-mandatory sentencing guidelines, and Currie filed a timely notice of appeal. On May 4, 2005, the Court of Appeals for the Third Circuit vacated Currie's sentence as a result of the United States Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005). On July 1, 2005-after his sentence had been vacated, but before this Court had resentenced him-Currie filed a motion pursuant to 28 U.S.C. § 2255 for modification of his sentence. At his resentencing hearing on August 4, 2005, the Court advised Currie that his motion was premature because no sentence was then in place. See Currie v. United States, Civ. No. 05-3361, D.E. # 2. Consequently, the Court accepted Currie's request to withdraw the motion. Id. On September 28, 2005, the Court resentenced Currie to a term of 120 months' imprisonment. Currie did not thereafter appeal or move for § 2255 collateral relief.
More than two years later, on October 25, 2007, this Court granted a downward variance to a defendant based on the sub-standard conditions at the Passaic County Jail, where the defendant had been housed pre-trial. Sutton, 2007 U.S. Dist. LEXIS 79518, at *30. On May 20, 2008-two and a half years after he had been resentenced-Currie filed a letter requesting that the Court further modify his sentence in light of Sutton because he had also been housed at the Passaic County Jail from June 2002 to June 2003 (before his first sentence was pronounced). Before the Court took action on this letter, on July 8, 2008, Currie filed another letter request seeking the same relief. Deeming the letter an "informal request for sentence modification," the Court denied relief on July 14, 2008, finding that it lacked jurisdiction to modify Currie's sentence under Rule 35(a) of the Federal Rules of Criminal Procedure because the request had been filed more than seven days after sentencing. It stated that "any modification of a sentence handed down by this Court beyond the 7 day period can only come by way of the appropriate appeals and/or post-conviction relief process." The Court expressly cautioned, however, that "[t]here are strict rules governing the timing and substance of a direct appeal or post-conviction petition, and the Court does not comment on the availability of either to defendant or the likelihood of success." The instant petition followed on April 9, 2009.
The writ of audita querela, Latin for "the complaint having been heard," is an ancient and extraordinary writ used to challenge a judgment that, while correct when it was rendered, later became incorrect as a result of matters arising after it issued. United States v. Coleman, 162 F. App'x 163, 165 n.1 (3d Cir. 2006); Gore v. United States, No. 90-304, 2009 U.S. Dist. LEXIS 15403, at *3-4 (D.N.J. 2009). In criminal cases, the "writ is available only where there is a legal, rather than an equitable, objection to a conviction that has arisen subsequent to the conviction and is not redressable by another post-conviction remedy." Gore, 2009 U.S. Dist. LEXIS 15403, at *4 (citing Muirhead v. Attorney Gen. of the United States, 262 F. App'x 473, 474 (3d Cir. 2008)).
As many courts have stated, a motion for sentence modification under 28 U.S.C. § 2255-not a petition for a writ of audita querela-is the presumptive means for challenging a sentence. See Davis v. United States, 417 U.S. 333, 343 (1974); Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); Hyman v. United States, No. 08-5999, 2009 U.S. Dist. LEXIS 16833, at *2 (D.N.J. Mar. 5, 2009) (citing In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997));Gore, 2009 U.S. Dist. LEXIS 15403, at *8. Audita querela is an auxiliary writ that may only be employed to "fill in the gaps" in federal criminal post-conviction remedies. Gore, 2009 U.S. Dist. LEXIS 15403, at *7 (citing United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001)). Stated otherwise, the writ is unavailable where the relief requested is cognizable under § 2255. Id. at 9; see also Carrington v. United States, 503 F.3d 888, 890 (9th Cir. 2007); United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); Valdez-Pacheco, 237 F.3d at 1080.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") enacted a one- year statute of limitations for filing § 2255 motions, 28 U.S.C. § 2255(f), which effectively makes such a motion time-barred here. Currie, however, styled his petition as one for audita querela. Section 2255(e) permits a court to hear a petition for a writ of habeas corpus where a motion under § 2255 would be "ineffective or inadequate." 28 U.S.C. § 2255(e).*fn2 Habeas corpus and audita querela are distinct concepts; § 2255(e) explicitly invokes only the former. Nevertheless, the "safety valve" that subsection (e) offers is designed to "ensure that petitioners have a fair opportunity to seek collateral relief." Cradle v. United States, 290 F.3d 536, 539 (3d Cir. 2002). As stated above, Sutton's timing precluded Currie from asserting any real collateral challenge based on the Passaic County Jail conditions. Given the interstitial gap-filling role of audita querela and the fact that Currie does not appear to be abusing the writ, it is the Court's view that § 2255(e) applies to the auxiliary writ of audita querela to the same extent as § 2241. See Lopez v. United States, No. 94-184, 2008 U.S. Dist. LEXIS 76101, at *5-7 (E.D. Pa. Sept. 29, 2008) (analyzing whether § 2255 was inadequate or ineffective, making audita querela theoretically available (but ultimately concluding that in the circumstances of that case, that § 2255 was not inadequate or ineffective)).
All of that said, a § 2255 petition is not "ineffective or inadequate" simply because a particular petitioner does not meet the threshold requirements of the AEDPA: "Section 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255. Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002); see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) ("A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the post-conviction remedies that must be filled by the common law writs."), quoted with approval in Hazard v. Samuels, 206 F. App'x 234, 236 (3d Cir. 2006) and United States v. Reaves, 177 F. App'x 213, 213 (3d Cir. 2006). Nevertheless, the "provision exists to ensure that petitioners have a fair opportunity to seek collateral relief"; "[i]t is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Id at 538-39 (citing Dorsainvil, 119 F.3d ...