Eliston George v. Director Virgin Islands Bureau

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: SHWARTZ, NYGAARD and FISHER, Circuit Judges. Total Pages: 3. CLD-238

Case: 17-1629

Document: 003112632931

Page: 1

CLD-238

Date Filed: 05/24/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1629
___________
ELISTON F. GEORGE,
Appellant
v.
DIRECTOR VIRGIN ISLANDS BUREAU OF CORRECTIONS
____________________________________
On Appeal from the District Court
of the Virgin Islands
(D.C. Civil No. 3-14-cv-00067)
District Judge: Honorable Curtis V. Gomez
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 18, 2017
Before: SHWARTZ, NYGAARD and FISHER, Circuit Judges
(Opinion filed: May 24, 2017)
_________
OPINION*
_________

PER CURIAM
In 1978, Eliston George was sentenced to life in prison without parole for first

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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Document: 003112632931

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Date Filed: 05/24/2017

degree murder. We affirmed the judgment. Since then, George has repeatedly attempted
to challenge his judgment without success.
Most recently, George filed a petition for a writ of audita querela in the District
Court of the Virgin Islands. His petition was based on affidavits from two trial witnesses,
who claimed that they had perjured themselves at the direction of the prosecutor.
Adopting a report and recommendation over George’s objections, the District
Court denied the petition. The District Court concluded that George’s petition “is in
substance a § 2255 motion” which he had “not received authorization to file.” The
District Court further explained that to the extent that the writ of audita querela may “fill
the gaps” of the federal post-conviction scheme, restrictions on George’s ability to file
another proper § 2255 motion did not create a gap to be filled by the writ. George
appeals.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is de novo. See
United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per curiam). Upon review,
we will summarily affirm because no substantial question is presented on appeal. See 3d
Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
A motion to vacate sentence under 28 U.S.C. § 2255 is the presumptive means to
collaterally challenge a federal conviction or sentence. See Okereke v. United States, 307
F.3d 117, 120 (3d Cir. 2002). The common law writ of error audita querela is not
available when a challenge is cognizable under § 2255 because such common law writs
survive only to fill the gaps in the current statutory scheme for post-conviction relief. See
Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009) (per curiam). As the District
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Date Filed: 05/24/2017

Court concluded, George essentially presented claims that could be raised in a § 2255
motion. Although any such § 2255 motion would require our authorization, § 2255 is not
an inadequate or ineffective remedy for George just because he appears unable to meet its
stringent gatekeeping requirements. See Massey, 581 F.3d at 174. He cannot
circumvent those requirements by using a common law writ.
For these reasons, we will affirm the District Court’s judgment.

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