Runnels v. Avoyelles Marksville Detention Center

Filing 44

MEMORANDUM ORDER denying 38 Motion Writ of Audita Querela. Signed by Magistrate Judge Kathleen Kay on 11/18/2014. (crt,GregorySld, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION

DONALD RUNNELS
DOC #187611

CIVIL ACTION NO. 14-503

VS.

JUDGE MINALDI

WARDEN, AVOYELLES MARKSVILLE
DETENTION CENTER

MAGISTRATE JUDGE KAY

MEMORANDUM ORDER

Before the court is an application for a writ of audita querela filed by petitioner Donald
K. Runnels. Petitioner is an inmate in the custody of the Louisiana Department of Public Safety
and Corrections. He is incarcerated at Tensas Parish Detention Center in Waterproof, Louisiana.
For the reasons set forth below, the petitioner’s application is hereby DENIED.
I. FACTS & PROCEDURAL HISTORY
A. Procedural History
The petitioner, Donald K. Runnels, was arrested after he was found to be in possession of
various cleaning supplies and a shovel that belonged to a Pizza Hut in Oakdale, Louisiana. He
was subsequently charged with one count of simple burglary, and one count of theft less than
$500.00. At trial on the simple burglary count, a six-person jury unanimously convicted him.
Thereafter, the State filed a habitual offender bill of information. On December 15, 2011, while
the habitual offender bill was pending, the trial court imposed sentence on the underlying
offenses.
For the simple burglary charge, the defendant was sentenced to ten years at hard labor
with three years suspended. The trial court further imposed four years of supervised probation,

with conditions, and ordered the defendant to pay supervision and technology fees. For the theft
less than $500.00 charge, the trial court sentenced him to six months in the parish jail to run
concurrent with his simple burglary sentence.

Runnels v. Warden Avoyelles Marksville

Detention Center, 13-cv-101 (W.D. La.), Doc. 5, att. 1, pp. 22-23.
Petitioner subsequently appealed his sentence and conviction to the Louisiana Third
Circuit Court of Appeal which, on November 7, 2012, affirmed his conviction and sentence for
simple burglary but vacated and remanded the sentence for theft less than $500.00 [Id. at Doc. 5,
att. 1, p. 20] noting that the record did not indicate that a verdict had been rendered either by the
jury or by the trial court on that count. See State v. Runnels, 101 So.3d 1046 (La. App. 3 Cir.
11/7/12).
Following his appeal, the petitioner was sentenced as a Habitual Offender on or about
November 29, 2012. He then filed a motion for rehearing in December of 2012 which was
denied on January 9, 2013. Thereafter, he did not seek review with a higher state court. Runnels,
13-cv-101 (W.D. La.), Doc. 5, pp. 4-5.
On January 15, 2013, petitioner filed an application for a writ of habeas corpus with this
court which was later dismissed without prejudice for his failure to exhaust his remedies at the
state level. On January 23, 2013, petitioner filed another application for writ of habeas corpus
with this court wherein he attacked both the 2011 conviction and a 1996 conviction for robbery
claiming that his 1996 conviction was improperly used to enhance his 2011 conviction. We
dismissed that petition with prejudice. See Runnels v. Warden Tensas Parish Detention Center,
13-cv-209 (W.D. La.), Doc. 4. On March 15, 2014 the petitioner filed yet another application for
a writ of habeas corpus which has been amended several times. As of the present time, that
application remains pending before us.

Under consideration now is the petitioner’s application for a writ of audita querela filed
on November 5, 2014. It alleges that “newly discovered evidence,” namely a photograph the
petitioner has obtained, gives rise to a “high probability of acquittal.” Doc. 38, p. 3.
Accordingly, he asserts that enforcement of the November 29, 2012 judgment sentencing him to
fifteen years imprisonment as a Habitual Offender should be halted and that he should therefore
be released from custody. Id.
B. Requests for Bail
During the course of the instant litigation, the petitioner has twice asked this court to set
bail in order to secure his release pending collateral review. On his first request filed on June 18,
2014 we stated that we had “no authority to order release from a final state court judgment of
conviction pending collateral review except under "extraordinary cases involving special
circumstances or a high probability of success." Doc. 24, (citing Land v. Deeds, 878 F.2d 318,
319 (9th Cir. 1989) (internal citations omitted)). We found that the petitioner had set forth no
such extraordinary circumstances and thus denied the request.
Reviewing his second request filed on July 7, 2014 we found yet again that the petitioner
had still failed to set forth any facts to show any special circumstances or otherwise indicating a
high probability of success. We further noted that “[e]ven if an extraordinary case were to exist,
it is doubtful this court would allow release given petitioner's having fled the State of Louisiana
prior to execution of sentence while on bond on appeal as evidenced by the correspondence of
the Louisiana Attorney General to the Governor of Louisiana seeking extradition of the
defendant.” Doc. 27 (citing Doc. 26, Att. 1, p. 1).
II. LAW AND ANALYSIS
The writ of audita querela is a common law writ that “constitutes the initial process in an
action brought by a judgment defendant to obtain relief against the consequences of the judgment

on the ground that some defense or discharge has arisen since its rendition that could not be
taken advantage of otherwise.” United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010) (citing
United States v. Reyes, 945 F.2d 862, 863 n. 1 (5th Cir.1991)). It is often compared to a writ of
coram nobis, but the two differ in that “a writ of coram nobis attacks a judgment that was infirm
at the time it was rendered for reasons that later came to light, while a writ of audita querela is
used to challenge a judgment that was correct at the time it was rendered but which is made
infirm by matters that arose after its rendition.” Id. (citing 7A C.J.S. Audita Querela § 4 (2004)).
Since the adoption of Rule 60(b) of the Federal Rules of Civil Procedure which expressly
abolished both writs as to civil judgments, the use of writs of audita querela and coram nobis has
been practically eliminated. However, in United States v. Morgan, 346 U.S. 502 (1954) the U. S.
Supreme Court held that under the All Writs Act, 28 USC §1651(a), writs of coram nobis were
still available in criminal proceedings where they were needed to fill gaps in federal postconviction proceedings.

Accordingly, the Fifth Circuit has “acknowledged, with some

reservation, that the writ of audita querela might also survive in criminal adjudications, if there
is a gap for it to fill.” 599 F.3d at 488 (citing United States v. Banda, 1 F.3d 354, 356 (5th
Cir.1993); Reyes, 945 F.2d at 865 & n. 5). Specifically, the court noted that if the writ survives
at all,
…it can only be available where there is a legal objection to a judgment which
has arisen subsequent to that judgment. Purely equitable grounds for relief do not
justify the issuance of a writ of audita querela. Furthermore, the writ is only
available where the legal objection raised cannot be brought pursuant to any other
post-conviction remedy. This limitation follows from the reasoning of Morgan,
which allows relief pursuant to a writ of audita querela only where a gap exists in
the system of federal post-conviction remedies.
Id. (internal citations omitted).

Applying this precedent to the case before us we note that in seeking a writ of audita
querela, the petitioner here choses “a slender reed upon which to lean,” Banda, 1 F.3d at 356,
and we find two reasons why his application must be denied.
First, the petitioner’s third habeas petition is currently pending before this court. Therein,
he makes multiple claims challenging his conviction. Among those claims are assertions of
ineffective assistance of counsel, the failure of the State to prove the elements of the crime of
which he was convicted, improper discovery methods, and improper questioning of witnesses
inter alia. Clearly, he vehemently objects to the judgment on grounds that it was improper at the
time of its rendition. Writs of audita querela do not provide relief on such claims. See 7A C.J.S.
Audita Querela § 4, supra.
The relief the petitioner seeks is perhaps more properly accorded by a writ of coram
nobis. But even if he had applied for that writ, we would still be required to deny it because the
claim he now makes involves “newly discovered evidence” recently obtained which allegedly
tends to show a “high probability of acquittal.” Under 28 USC §2244(b)(2)(B) 1, such a claim
could have been brought in his habeas petition and since that petition is still pending, the claim
he asserts here might still be raised by an amendment thereof. Accordingly, we cannot conclude
that any legal objection the petitioner has raised is one that could not “be brought pursuant to any
other post-conviction remedy.” Miller, 599 F.3d at 488. Therefore, under the Morgan Court’s

1

(b)…
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented
in a prior application shall be dismissed unless—
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due
diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.

reasoning, there is no “gap” for either the writ of audita querela or the writ of coram nobis to fill
and therefore neither writ can be issued in this case.
Secondly, to the extent the petitioner seeks relief on equitable grounds 2, the Fifth Circuit
has repeatedly held, as noted above, that such equitable grounds do not justify the issuance of a
writ of audita querela. See Reyes, 945 F.2d at 866-867 (5th Cir.1991) (citing United States v.
Holder, 936 F.2d 1 (1st Cir.1991)); Banda, 1 F.3d at, 356; Miller, 599 F.3d at 488.
Finally, to the extent that the petitioner’s present application for a writ of audita querela
challenges his 1996 conviction in order to contest his status as a habitual offender and thus
reduce the fifteen year sentence he is currently serving, he has presented no evidence to show
that the 1996 judgment has since become invalid and thus this application must be denied in that
regard as well.
III. CONCLUSION
For the reasons set forth above, the petitioner’s writ of audita querela is hereby
DENIED.
THUS DONE this 18th day of November, 2014.

2

In his writ application under the heading “Relief Sought Hereby,” the petitioner states that “the effectiveness of
this ‘writ’ SHALL terminate upon adverse ruling in this matter, pending such rule as Supreme court justices may
determine (in favor of this defendant) in court as fair and equable [sic], in accordance with the law of the land.” Doc
38, p. 3. We interpret this statement as an attempt to assert equitable relief.