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United States v. Battle

United States District Court, D. New Jersey

December 7, 2018

Terry BATTLE
v.
UNITED STATES OF AMERICA

          OPINION & ORDER

          KEVIN MCNULTY DISTRICT JUDGE

         This is a petition under the All Writs Act, 28 U.S.C. § 1651, for a writ of audita querela. (DE 105)[1] 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.[2] He seeks to vacate that sentence and be resentenced without the career offender designation. For the reasons stated herein, the petition is denied.

         The following history of prior motions for post-conviction relief is relevant:

■ 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, 11)
■ 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).

         Audita 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.

         Mr. 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 guideline.

         A 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).

         A 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.

         Thus, 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 673.

         It 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 alone.

         For 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 ...


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