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United States v. Gilchrist

United States District Court, D. Kansas

May 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CARLOS GILCHRIST, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE

         On 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 appealability.

         Factual Background

         On 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 1.[1] 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. #790).

         On 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.

         On 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 release.[2]

         On May 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.

         In the 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.

         On 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. at 2.

         Analysis

         I. Basis For Relief Requested In Defendant's Motion

         Defendant 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.[3] 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 review).

         Here, 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).

         II. Relief Under 28 ...


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