United States District Court, D. New Jersey
OPINION & ORDER
MCNULTY DISTRICT JUDGE
a petition under the All Writs Act, 28 U.S.C. § 1651,
for a writ of audita querela. (DE 105) The petitioner,
Terry Battle, was convicted by a jury of conspiring to
distribute 5 kilograms or more of cocaine, in violation of 21
U.S.C. § 846. He was designated a career offender under
U.S.S.G. § 4B1.1, based on eight prior felony narcotics
convictions. On December 8, 2008, he received a sentence of
360 months' imprisonment. He seeks to vacate that sentence
and be resentenced without the career offender designation.
For the reasons stated herein, the petition is denied.
following history of prior motions for post-conviction relief
■ By Judgment and Opinion filed January 4, 2012, the
U.S. Court of Appeals for the Third Circuit denied Mr.
Battle's direct appeal from his conviction. (DE 83, 84)
No. petition for certiorari was filed.
■ By Order and Opinion filed March 26, 2014, District
Judge Faith S. Hochberg denied Mr. Battle's motion
pursuant to 28 U.S.C. § 2255 on the grounds other them
ineffective assistance of counsel. (Civ. No. 13-2024, DE 10,
■ After assigning new counsel and holding an
evidentiary hearing, by Order and Opinion filed March 14,
2016, District Judge Jose L. Linares denied the remaining
claim of ineffective assistance of counsel asserted in Mr.
Battle's motion pursuant to 28 U.S.C. § 2255. (Civ.
No. 13-2024, DE 40, 41)
■ By Order dated August 29, 2016 (DE 103), I denied Mr.
Battle's motion for reduction of sentence based on
subsequent amendments to the Sentencing Guidelines, pursuant
to 18 U.S.C. § 3582(c)(2).
querela is an ancient writ, currently of limited application.
"[T]he 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 postconviction remedy." Gore v. United
States, Crirn. No. 90-304 (SRC), 2009 WL 512160, at *2
(D.N.J. Feb. 27, 2009). "Courts have limited the remedy
to only those instances in which there are gaps in the
framework of federal postconviction relief for which no other
remedy is available." Id.
Battle asserts that the writ must be granted based on a
change in the law. Although he may have been correctly
classified as a career offender under U.S.S.G. § 4B1.1
when he was sentenced in 2008, he says, subsequent case law
has undermined the basis for that determination. He seeks to
be resentenced without application of the career offender
tiireshold objection concerns die scope of audita querela. As
noted above, die modern writ is an interstitial remedy,
available only where die petitioner seeks "federal
postconviction relief for which no otiier remedy is
available." Gore, 2009 WL at *2. The relief Mr. Battie
seeks-vacatur of his sentence and resentencing-is squarely
within the scope of 28 U.S.C. § 2255, which authorizes a
motion "to vacate, set aside or correct" an illegal
sentence. Id. § 2255(a). Where the relief
sought is within the scope of § 2255, there is no
remedial gap to fill, and audita querela is unavailable.
See id.; United States v. Hannah, 174 Fed.Appx. 671,
673 (3d Cir. 2006).
petitioner cannot, by violating the procedural rules
surrounding § 2255, render it "unavailable"
and thus gain the benefit of audita querela. "A prisoner
may not circumvent valid congressional limitations on
collateral attacks by asserting that those very limitations
create a gap in the postconviction remedies that must be
filled by the common law writs such as audita querela."
United States v. Paster, 190 Fed.Appx. 138, 139 (3d
Cir. 2006). It is the applicability of the § 2255
remedy, "not the personal inability to use it, that is
determinative." Gore, 2009 WL 512160, at *4.
for example, audita querela cannot be used to avoid
AEDPA's restrictions on the filing of second or
successive § 2255 motions; "a previous denial of
§ 2255 relief does not render § 2255
inadequate" or create a "gap" that may be
filled by audita querela to fill. Hannah, 174 Fed.Appx. at
follows that the relief sought here, vacatur of sentence and
resentencing, is within the scope of § 2255 and
therefore cannot be obtained by means of a writ of audita
querula. The petition must be dismissed for that reason
similar reasons, and in the alternative, this motion could be
viewed as one under § 2255. Even on that assumption,
however, it has been filed well outside the one-year statute
of limitations imposed by 28 U.S.C.§ 2255(f). Mr.
Battle's conviction became final when it was affirmed on
January 4, 2012, and the deadline to seek a writ of