United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE
March 6, 2014, the Court sentenced defendant to 180 months in
prison. This matter is before the Court on defendant's
[Motion For] Writ Of Audita Querela (Doc. #2078)
filed April 30, 2018, which the Court construes as a second
or successive motion under 28 U.S.C. § 2255. For reasons
stated below, the Court dismisses defendant's motion for
lack of jurisdiction and denies a certificate of
October 3, 2012, a grand jury charged Carlos Gilchrist and
some 50 other defendants with conspiracy to manufacture, to
possess with intent to distribute and to distribute 280 grams
or more of cocaine base and to possess with intent to
distribute and to distribute five kilograms or more of a
mixture and substance containing cocaine. See Second
Superseding Indictment (Doc. #402), Count
The statutory penalty under Count 1 included a mandatory term
of imprisonment of ten years to life. See 21 U.S.C.
§ 841(b)(1)(A)(ii), (iii). On June 17, 2013, the
government filed a notice that defendant had four prior
felony drug convictions which increased the statutory minimum
to life in prison. See Enhancement Information (Doc.
August 5, 2013, the day that trial was scheduled to begin,
pursuant to a plea agreement under Rule 11(c)(1)(C), Fed. R.
Crim. P., defendant pled guilty to the conspiracy charge in
Count 1. As part of the agreement, the government agreed to
dismiss Count 39 and to withdraw its request for an enhanced
sentence based on defendant's prior drug felony
convictions. See Plea Agreement Pursuant To Fed. R. Crim.
P. 11(c)(1)(C) (Doc. #932) ¶¶ 1, 6. The
agreement proposed a sentence of 180 months in prison and
five years of supervised release. See id., ¶ 4.
March 6, 2014, consistent with the recommended sentence in
the plea agreement, the Court sentenced defendant to 180
months in prison and five years of supervised
24, 2016, the Court overruled defendant's initial motion
to vacate his sentence under 28 U.S.C. § 2255 and denied
a certificate of appealability. See Memorandum And
Order (Doc. #1947) at 12. On April 13, 2017, the Tenth
Circuit affirmed. See Order And Judgment (Doc.
#2036). The Supreme Court denied defendant's petition for
a writ of certiorari. Doc. #2055.
Tenth Circuit Court of Appeals, defendant sought leave to
file a successive Section 2255 motion. Defendant asserted
that his conviction should be vacated based on new Tenth
Circuit law on use of his prior convictions to subject him to
the enhanced minimum life sentence, and to calculate his
advisory Guideline range. See Order (Doc. #2073)
filed April 13, 2018 at 2. On April 13, 2018, the Tenth
Circuit denied defendant's request for leave to file a
successive Section 2255 motion. See id.
April 30, 2018, defendant filed a motion for a writ of
audita querela. Doc. #2078. Defendant asserts that
in light of Tenth Circuit law, the Court should resentence
him absent the career offender enhancement. See id.
Basis For Relief Requested In Defendant's Motion
seeks a writ of audita querela. Writs under the All
Writs Act, 28 U.S.C. § 1651, such as audita
querela and coram nobis are unavailable to a
defendant when other remedies exist such as a motion to
vacate sentence under 28 U.S.C. § 2255. See United
States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002).
After a defendant has exhausted his direct appeal in a
criminal action, his exclusive remedy for raising a challenge
to his sentence is under Section 2255 unless that remedy is
inadequate or ineffective. See United States v.
McIntyre, 313 Fed.Appx. 160, 162 (10th Cir. 2009);
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.
1996). Failure to obtain relief under Section 2255 does not
establish that the remedy so provided is either inadequate or
ineffective. Bradshaw, 86 F.3d at 166. Likewise, the
mere fact that a prisoner is precluded from filing a
time-barred or second Section 2255 petition does not
establish that the remedy under Section 2255 is inadequate or
ineffective. United States v. Montano, 442 Fed.Appx.
412, 413 (10th Cir. 2011); Caravalho v. Pugh, 177
F.3d 1177, 1179 (10th Cir. 1999); United States v.
O'Bryant, 162 F.3d 1175, 1998 WL 704673, at *2 (10th
Cir. Oct. 2, 1998); see Patel v. Morris, 37
Fed.Appx. 428, 430-31 (10th Cir. 2002) (allowing claims under
Section 2241 that would be barred under Section 2255 because
remedy “inadequate or ineffective” would allow
prisoners to avoid stringent gatekeeping requirements under
Section 2255; such procedure contrary to statute and
Congressional intent to restrict successive petitions to
extremely limited situations). Finally, a defendant cannot
avoid the bar against successive Section 2255 petitions by
simply styling a petition under a different name.
McIntyre, 313 Fed.Appx. at 162; Torres, 282
F.3d at 1246; see also In re Davenport, 147 F.3d
605, 608 (7th Cir. 1998) (senseless to suppose Congress
permitted prisoners to pass through closed door of Sections
2241 and 2255 by way of All Writs Act simply by changing
title of motions); Triestman v. United States, 124
F.3d 361, 376 (2d Cir. 1997) (if prisoner who is prevented
from filing Section 2255 petition could, without more,
establish that Section 2255 is “inadequate or
ineffective” and entitled to petition under Section
2241(c)(3), Congress would have accomplished nothing through
statutes like AEDPA to place limits on federal collateral
defendant asks the Court to resentence him without the career
offender enhancement. Defendant's present claim in
substance and effect asserts federal grounds for relief from
his underlying conviction and sentence. Because defendant has
previously sought relief under Section 2255, the Court
construes his claim as part of a second or successive Section
2255 motion. See United States v. Wetzel-Sanders,
805 F.3d 1266, 1268 (10th Cir. 2015) (motion which attacks
judgment of conviction or sentence when prior motion already
did so constitutes second or successive motion);
Spitznas, 464 F.3d at 1216 (motions that assert
defect outside context of habeas proceeding constitute second
or successive petitions).
Relief Under 28 ...