Polk v. United States of America

Filing 4

ORDER Denying 1 Petition and Dismissing Case. Signed by District Judge Avern Cohn. (NHol)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GENE O. POLK,
Petitioner,
vs.

Case No. 11-11252

UNITED STATES OF AMERICA,
HON. AVERN COHN
Respondent.
_______________________________/
ORDER DENYING PETITION FOR WRIT OF AUDITA QUERELA PURSUANT TO 28
U.S.C. § 1651
I. Introduction
This is a case under 28 U.S.C. § 1651. Before the Court1 is Petitioner Gene O.
Polk’s (Petitioner) petition for a writ of audita querela, essentially arguing that the United
States Supreme Court’s decision in United States v. Richardson, 526 U.S. 813 (1999)
entitles him to relief.2 For the reasons which follow, the petition is DENIED and this
case is DISMISSED.
II. Background
A.

1

The petition was opened as a new civil case, No. 11-11252. It was reassigned
to the undersigned as a companion to Petitioner’s criminal case, No. 92-81127.
2

In Richardson, the Supreme Court held that “a jury in a federal criminal case
brought under § 848 [the CCE statute] must unanimously agree not only that the
defendant committed some ‘continuing series of violations’ but also that the defendant
committed each of the individual ‘violations’ necessary to make up that ‘continuing
series,’” 526 U.S. at 815

On February 21, 1995, Petitioner was charged, along with others known as
members of the “Best Friends” organization, in a 20 count second superseding
supplemental indictment. Terrance Brown was the leader of the Best Friends
organization and was originally indicted for organizing a continuing criminal enterprise
(CCE) under 28 U.S.C. § 848(a) and (c). Brown was killed before trial. The case
proceeded to trial against Petitioner and others.
On December 8, 1995, Petitioner was convicted of (1) conspiracy to possess with
intent to distribute and to distribute cocaine and cocaine base, in violation of 21 U.S.C. §
846, (2) intentional killing in furtherance of a (CCE), aiding and abetting, in violation of
21 U.S.C. § 848(e)(1)(A) and 18 U.S.C. § 2 (a CCE murder), and (3) use or carrying a
firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c). On April
16, 1996, Petitioner was sentenced to life imprisonment plus 25 years.
B.
Petitioner then began a long process of challenging his convictions and
sentence.3 Petitioner first filed a timely appeal to the Court of Appeals for the Sixth
Circuit where his conviction and sentence were upheld. See United States v. Polk, Nos.
96-1492, 96-1534, 96-1512, 96-1710, 96-1533, 1999 WL 397922 (6th Cir. June 2, 1999)
(unpublished). The Sixth Circuit also denied Petitioner’s motions for rehearing and
rehearing en banc. See Orders filed on August 23, 1999 and September 3, 1999 in
United States v. Polk, Ct. of Appeals Case Nos. 96-1492, 96-1534, and 96-1533. The

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Petitioner sets forth additional procedural history in his petition regarding his
appeals. What follows is the case information the Court was able to verify.
2

United States Supreme Court denied a writ of certiorari. See Order filed on April 17,
2000 in United States v. Polk, Sup. Ct. Case. No. 99-7188.
Petitioner then filed a motion under 28 U.S.C. § 2255, arguing, as he does here,
that the Supreme Court’s decision in Richardson v. United States, 526 U.S. 813 (1999)
entitled him to relief under § 2255. The case was assigned to the undersigned. The
Court denied the motion. See Polk v. United States, No. 01-70395 (E.D. Mich. July 10,
2001). The Court denied a certificate of appealability. The Sixth Circuit denied the
appeal. See Polk v. United States, No. 01-2309 (6th Cir.).
In 2003, Petitioner filed a motion in the Sixth Circuit seeking permission to file a
successive § 2255. The request was denied. See ln re: Gene O. Polk, No. 03-2286
(6th Cir. Mar. 30, 2004).
In 2006, Petitioner filed a petition under 28 U.S.C. § 2241 in the Middle District of
Florida. The district court dismissed the petition for failing to meet the requirements of
section 2241. The district court also noted that to the extent the petition was construed
as being brought under section 2255, Petitioner had not obtained permission to file it.
See Polk v. Yates, No. 04-548 (M.D. Fl. Oct. 25, 2006).
In 2007, Petitioner filed a second petition under section 2241 in this district,
which was assigned to a different district judge. See Polk v. Menifee, 07-13089 (E.D.
Mich.). The district court transferred the petition to the Western District of Louisiana as
that was the jurisdiction over Petitioner’s custodian. Upon transfer, the district court
denied the petition and dismissed it for lack of jurisdiction. See Polk v. Menifee, No. 071309 (W.D. La. Sept. 27, 2008). Petitioner appealed. The Fifth Circuit affirmed. Polk v.
Menifee, No. 07-30952, (5th Cir. June 19, 2008).
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On March 29, 2011, Petitioner filed the petition for writ of audita querela.
III. Analysis
The writ of audita querela is a common-law writ that affords relief only in very
limited circumstances in criminal cases. It is “used to attack a judgment that was
correct when rendered, but that later became incorrect because of circumstances that
arose after the judgment was issued.” Carrington v. United States, 503 F.3d 888, 890
n. 2 (9th Cir. 2007); see also United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995)
(writ of audita querela “is probably available where there is a legal, as contrasted with
an equitable, objection to a conviction that has arisen subsequent to the conviction and
that is not redressable pursuant to another post-conviction remedy.”) (emphasis added).
Where the petitioner’s legal objection to his conviction centers on an issue of statutory
interpretation, audita querela is only a possible remedy where the petitioner is “factually
or legally innocent as a result of a previously unavailable statutory interpretation.” In re
Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997).
Petitioner clearly has legal, rather than factual, objections to his conviction. The
petition rests on a substantive legal argument about whether Richardson entitles him to
relief. This is a clear indication that Petitioner is actually seeking a writ of habeas
corpus, rather than a writ of audita querela. As such, relief is not available. See United
States v. Herrera, 216 F. App’x 809, 811 (10th Cir. 2007) (when a petition asserts
substantive claims to set aside a conviction, the petition is treated as one for habeas
corpus, rather than audita querela);Shelton v. United States, 201 Fed. Appx. 123, 124
(3d Cir. 2006) (“For claims that are cognizable in a § 2255 motion, the writ of audita
querela is not available. In particular, the writ cannot be invoked in order to enable a
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defendant to file a § 2255 claim, but avoid complying with the rules that govern such
motions.”) (citations removed). That is, because Petitioner already filed a § 2255
motion, absent permission from the Sixth Circuit, he cannot file a second motion.
Finally, based on Sixth Circuit precedent, it appears that there is also a further
limitation on the availability of audita querela relief that would preclude Petitioner from
obtaining this writ. In Frost v. Snyder, 13 F. App’x 243, 245 n. 1 (6th Cir. 2001), the
Sixth Circuit stated that a writ of audita querela “requires satisfaction of the judgment,
[and] it can only be used when the petitioner has served his or her sentence and been
released from custody.” Id. (quoting Ira P. Robbins, The Revitalization of the
Common-Law Civil Writ of Audita Querela As a Postconviction Remedy in Criminal
Cases: The Immigration Context and Beyond, 6 GEO. IMMIGR. L.J. 643 (1992)).
Petitioner has not finished serving the sentence imposed by the Court in 1995. Thus,
he is thus precluded from obtaining a writ of audita querela, even were there no other
roadblocks to his obtaining the writ.
SO ORDERED

Dated: April 21, 2011

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed Gene Polk, 20151039
U. S. P. - Pollock, P.O. Box 2099, Pollock, LA 71467 on this date, April 21, 2011, by
electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]
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