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United States v. Stumbaugh

United States District Court, D. Kansas

February 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL D. STUMBAUGH, Defendant.

          MEMORANDUM AND ORDER

          THOMAS MARTEN, JUDGE

         This matter is before the court on defendant Michael D. Stumbaugh's Petition for Writ of Audita Querela or Other Appropriate Relief Pursuant to the All Writs Act, 28 U.S.C. § 1651 (Dkt. 25). Defendant challenges his career offender enhancement, pursuant to § 4Bl.l of the United States Sentencing Guidelines (“U.S.S.G.”), based on the Tenth Circuit's recent decision in United States v. Madkins, 866 F.3d 1136 (10th Cir. 2017). For the reasons stated herein, defendant is entitled to relief.

         I. Background

         On February 15, 2006, defendant pleaded guilty, pursuant to Fed. R. Crim. P. 11(c)(1)(C), to possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (Counts 1, 5, and 6); possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a) (Count 4); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (Count 7). Pursuant to their agreement, the parties jointly requested a 262-month sentence.

         A Presentence Report (“PSR”) was prepared and determined defendant was a career offender under U.S.S.G. § 4B1.1 because he had two prior “controlled substance offenses”-Kansas state convictions for possession of marijuana with intent to sell, and possession of methamphetamine with intent to sell. Defendant's base offense level was 26, however, after various adjustments and the career offender enhancement, defendant's total offense level was 31.

         On May 1, 2006, the court imposed the parties' agreed upon sentence. Defendant did not file a direct appeal or a petition under 28 U.S.C. § 2255. On October 16, 2017, defendant filed the instant petition for writ of audita querela or other available relief pursuant to the All Writs Act, 28 U.S.C. § 1651.

         II. Writ of Audita Querela

         The Tenth Circuit has held that “a writ of audita querela is used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition.” United States v. Harris, 391 F. App'x 740, 743 (10th Cir. 2010) (quoting United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002). Although the writ of audita querela has been abolished in civil cases, it “might afford post-conviction relief to a criminal defendant to challenge a conviction or sentence to the extent it fills gaps in the current system of post-conviction relief.” See Id. But a writ of audita querela is not available to challenge a sentence “when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.” Id.

         As noted above, defendant has not previously filed a habeas motion pursuant to 28 U.S.C. § 2255. Even though defendant's plea agreement contained a collateral-attack waiver, a § 2255 motion-not a writ of audita querela-is the proper remedy for defendant to challenge his career offender sentencing enhancement. See Mata-Soto v. United States, 558 F. App'x 844, 848 n.3 (10th Cir. 2014) (“We have previously held that § 2255 is not inadequate or ineffective merely because it is barred by the statute of limitations. Sines v. Wilner, 609 F.3d 1070, 1073-74 (10th Cir. 2010). Similarly, a defendant's knowing and voluntary waiver of his § 2255 rights cannot be sufficient to render § 2255 inadequate or ineffective.”).

         III. Timeliness

         Defendant notes that he is time-barred from filing a § 2255 motion unless he meets certain requirements. The Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs defendant's § 2255 motion and establishes a one-year limitations period for federal prisoners seeking habeas relief. The limitations period commences on the latest of four dates.

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively ...

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