Joe Patron v. Rick Thaler, Director

Filing 920100115

Case: 09-10452

Document: 00511005351

Page: 1

Date Filed: 01/15/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 09-10452 Summary Calendar January 15, 2010 Charles R. Fulbruge III Clerk

JOE ROBERT PATRON, Petitioner-Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISON, Respondent-Appellee

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:09-CV-82

Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Joe Robert Patron, Texas prisoner # 1176158, seeks a certificate of appealability (COA) from the dismissal of his petition for writ of audita querela, in which he challenged his conviction and sentence for aggravated sexual assault of a child. A COA is not required for Patron to appeal. See 28 U.S.C. § 2253(c). We may affirm the district court's judgment on any basis supported by the record. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (denial of § 2255

Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR . R. 47.5.4.

*

Case: 09-10452

Document: 00511005351 Page: 2 No. 09-10452

Date Filed: 01/15/2010

motion). The district court correctly dismissed Patron's petition for writ of audita querela because redress was available to Patron under 28 U.S.C. § 2254. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); see also Felker v. Turpin, 518 U.S. 651, 662 (1996). It is irrelevant that Patron can no longer meet the standard for bringing a timely § 2254 petition. Cf. Tolliver, 211 F.3d at 878 (holding that fact that federal prisoner filed unsuccessful 28 U.S.C. § 2255 motion or that federal prisoner cannot meet requirements for filing successive § 2255 motion does not render § 2255 remedy unavailable). Accordingly, Patron's motion for a COA is DENIED as unnecessary and the judgment of the district court is AFFIRMED.

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