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Thomas Dwayne White v. United States of America

July 12, 2011

THOMAS DWAYNE WHITE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Bumb, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner Thomas Dwayne White, a prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey, submitted a petition for a writ of audita querela, under the All Writs Act, 28 U.S.C. § 1651. Because this Court lacks jurisdiction to consider this petition, and that it is not in the interest of justice to transfer, this Court will dismiss the petition.

BACKGROUND

According to the petition, on January 4, 1993, Petitioner was sentenced in the United States District Court, Northern District of Florida, to 200 months imprisonment for assault with a firearm and attempting to rob a "person having lawful custody of United States mail," followed by a consecutive 60-month sentence for use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c).

Petitioner's sentence was affirmed by the Court of Appeals for the Eleventh Circuit on April 25, 1994. On January 17, 2001, Petitioner filed a motion to modify his sentence, which was denied on January 13, 2002, with the denial affirmed by the Eleventh Circuit on September 19, 2002.

On September 30, 2009, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court, which was dismissed as untimely.

On February 1, 2010, Petitioner filed in this District Court a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2241. This Court dismissed the petition for lack of jurisdiction on March 19, 2010. See White v. Zickefoose, 10-0548 (RMB).

Meanwhile, on February 10, 2010, Petitioner filed for a certificate of appealability in the Eleventh Circuit, which was denied on May 7, 2010. On June 29, 2010, the Eleventh Circuit denied Petitioner's motion for reconsideration.

On November 9, 2010, Petitioner filed this Petition for a Writ of Audita Querela. Petitioner argues that the prosecutor in his 1992 criminal trial committed "serious glaring misconduct" by intentionally withholding evidence.

DISCUSSION

In Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009), cert. denied, 130 S. Ct. 2426 (May 3, 2010), the Court of Appeals for the Third Circuit held that a writ of audita querela is unavailable to a petitioner whose claim is cognizable under § 2255. The Third Circuit explained:

"The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute." Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). "Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Id. The 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 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2867, at 235 (1973)). Historically, audita querela existed as a remedy primarily for judgment debtors. Id.

While the writ of audita querela has been abolished in civil cases, see Fed. R. Civ. P. 60(e), the writ is available in criminal cases to the extent that it fills in gaps in the current system of post-conviction relief. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). See also United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (stating that the writ is probably available where there is a legal objection ...


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