Marty Wright

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying petition for writ of aduita querela (FRAP 21) [998478277-2]; denying Motion for evidentiary hearing [998478281-2] Originating case number: 4:95-cr-00039-TEM-TEM-1 Copies to all parties and the district court/agency. [998624753].. [10-2350]

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Date Filed: 07/05/2011

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2350

In re: MARTY LORENZO WRIGHT,
Petitioner.

On Petition for Writ of Audita Querela.
TEM-1)

Submitted:

June 30, 2011

(4:95-cr-00039-TEM-

Decided:

July 5, 2011

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Marty Lorenzo Wright, Petitioner Pro Se.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marty Lorenzo Wright has filed a petition for a writ
of audita querela in this court, pursuant to the All Writs Act,
28 U.S.C. § 1651(a) (2006), seeking to challenge the district
court’s prior dismissal of his Fed. R. Civ. P. 60(b) motion in
his underlying 28 U.S.C.A. § 2255 (West Supp. 2010) motion.

A

writ of audita querela is not available to a petitioner when
other

avenues

of

relief

are

available,

such

as

a

motion

to

United States v. Torres, 282 F.3d 1241,

vacate under § 2255.

1245 (10th Cir. 2002); United States v. Johnson, 962 F.2d 579,
582 (7th Cir. 1992) (explaining that audita querela may not be
invoked by a defendant challenging the legality of his sentence
who could otherwise raise that challenge under § 2255).

The

fact that Wright cannot proceed under § 2255 unless he obtains
authorization from this court to file a successive motion does
not alter this conclusion.
F.3d

1077,

1080

(9th

United States v. Valdez-Pacheco, 237

Cir.

2000)

(“We

agree

with

our

sister

circuits . . . that a federal prisoner may not challenge a
conviction or a sentence by way of a petition for a writ of
audita

querela

when

that

challenge

is

cognizable

under

§ 2255.”).
Accordingly, we deny Wright’s pending motion for an
evidentiary
querela.

hearing

and

his

petition

for

a

writ

of

audita

We dispense with oral argument because the facts and
2

Appeal: 10-2350

legal
before

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Date Filed: 07/05/2011

contentions

are

adequately

and

argument

the

court

Page: 3 of 3

presented

would

not

in
aid

the
the

materials
decisional

process.

PETITION DENIED

3