Daniel Acosta v. USA


UNPUBLISHED OPINION FILED. [13-11348 Dismissed as Frivolous] Judge: CDK , Judge: EGJ , Judge: CH Mandate pull date is 11/21/2014 [13-11348]

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Case: 13-11348 Document: 00512787645 Page: 1 Date Filed: 09/30/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-11348 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 30, 2014 Lyle W. Cayce Clerk DANIEL ACOSTA, Petitioner-Appellant v. UNITED STATES OF AMERICA, Respondent-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 2:13-CV-204 Before KING, JOLLY, and HAYNES, Circuit Judges. PER CURIAM: * Daniel Acosta, federal prisoner #44323-048, appeals from an order of the district court dismissing his petition for a writ of coram nobis. He seeks to challenge his conviction and sentence for possession with intent to distribute 500 grams or more of methamphetamine. The district court dismissed Acosta’s coram nobis petition based on a finding that the writ is not available if the petitioner is in custody and because 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-11348 Document: 00512787645 Page: 2 Date Filed: 09/30/2014 No. 13-11348 the relief Acosta seeks is available under 28 U.S.C. § 2255. However, in his appellate brief, Acosta does not mention, much less provide any relevant argument regarding, writs of coram nobis. Because even pro se litigants must brief issues for appeal, Acosta has waived this issue. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). In his objections to the magistrate judge’s report, Acosta also argued that he is entitled to relief by way of a writ of audita querela. He makes a similar argument on appeal. We will assume that Acosta’s objections should have been construed as a motion to amend and, therefore, that this issue was properly raised in the district court. See Barksdale v. King, 699 F.2d 744, 747 (5th Cir. 1983). However, Acosta is not eligible for such relief. Rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the application of the writ of audita querela to civil judgments, but this court has held that the writ “might also survive in criminal adjudications, if there is a gap for it to fill.” United States v. Miller, 599 F.3d 484, 487-88 (5th Cir. 2010). To the extent the writ of audita querela survives, it is available only when the legal objection raised cannot be brought under any other postconviction remedy. Id. Because Acosta’s claims would be cognizable in a § 2255 motion, audita querela relief is not available. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); § 2255(f)(3). Because the appeal is without arguable merit, we dismiss it as frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983); 5TH CIR. R. 42.2. APPEAL DISMISSED. 2

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