Polk v. United States of America

Filing 4

Order Denying 1 Petition for Writ of Audita Querela Pursuant to 28 U.S.C. 1651 Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GENE O. POLK,
Petitioner,
vs.

Case No. 13-13769

UNITED STATES OF AMERICA,
HON. AVERN COHN
Respondent.
_______________________________/
ORDER DENYING PETITION FOR WRIT OF AUDITA QUERELA PURSUANT TO 28
U.S.C. § 1651 (Doc. 1)
I.
This is a case under 28 U.S.C. § 1651. Petitioner Gene O. Polk (Petitioner) is
serving a life sentence following his jury conviction on multiple drug related offenses.
Before the Court1 is Petitioner’s 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 This is Petitioner’s second petition for writ of
audita querela. For the reasons which follow, the petition is DENIED and this case is
DISMISSED.

1

The petition was opened as a new civil case, case no. 13-13769. It was
reassigned to the undersigned as a companion to Petitioner’s prior, and nearly identical,
petition for writ of audita querela, case no. 11-11252. (Doc. 3). It is also a companion
to Petitioner’s criminal case, 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

II.
The Court of Appeals for the Sixth Circuit, in affirming the Court’s denial of
Petitioner’s first petition for writ of audita querela, summarized the background of this
case, including Petitioner’s numerous attempts to seek relief from his conviction and
sentence:
In 1995, a jury found Polk guilty of conspiracy to possess with intent to
distribute cocaine and cocaine base, aiding and abetting intentional killing in
furtherance of a continuing criminal enterprise, and using or carrying a firearm in
relation to a drug trafficking crime. These charges arose out of his leadership
and involvement in the “Best Friends” organization, a large-scale cocaine
distribution organization in Detroit, Michigan. Polk was sentenced to life in
prison, plus 45 years. This court affirmed Polk’s conviction and sentence, United
States v. Polk, No. 96-1492, 1999 WL 397922 (6th Cir. June 2, 1999)
(unpublished), and the Supreme Court denied review, 528 U.S.
1055 (1999).
Polk then filed a motion to vacate his sentence under 28 U.S.C. § 2255,
which the district court denied in 2001, and this court denied a certificate of
appealability. Polk’s motion to file a successive § 2255 motion was also denied.
In 2006, Polk filed a petition for habeas relief under 28 U.S.C. § 2241 in a federal
district court in Florida, which was denied. Polk v. Yates, No. 04-548 (M.D. Fl.
Oct. 2006).
Polk then filed a second § 2241 petition in the United States District Court
for the Eastern District of Michigan, which was transferred to the Western District
of Louisiana, because Polk had been transferred to a Louisiana federal prison.
The Louisiana district court denied the petition, and the Fifth Circuit affirmed. In
its decision, the Fifth Circuit determined that Polk’s challenge to his conviction,
based on the holding in Richardson v. United States, 526 U.S. 813 (1999), was
raised in his initial § 2255 motion in the Michigan federal district court, and that
Polk had not shown that a § 2255 motion would be inadequate to test the legality
of this same challenge.
Polk then filed a petition with this court, challenging the transfer of his §
2241 petition to the Louisiana district court, and asking this court to review his
claim on the merits. This court denied the request for mandamus on August 24,
2010, noting that Polk had numerous ways to pursue relief and that those
alternatives were not inadequate simply because relief had been denied.
In March 2011, Polk filed the pro se petition for audita querela now before
us for review, arguing that he was denied the opportunity to challenge his
convictions based on Richardson. The district court determined that Polk was
seeking to set aside his conviction with a legal challenge, and that his claim was
cognizable in a § 2255 motion, so that relief under the writ of audita querela was
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not available. The district court also determined that relief under audita querela
could not be granted before Polk had finished serving his sentence and had been
released.
Polk v. United States, No. 11-1620 (6th Cir. Jan. 31, 2012). Following the Sixth Circuit’s
decision, Petitioner sought, and was denied certiorari. Polk v. United States, No. 119962 (Supreme Court May 21, 2012).
III.
On September 4, 2013, Petitioner filed his second petition for writ of audita
querela. It is virtually identical to his prior petition. The petition fails for the same
reasons the Court set forth in denying Petitioner’s first petition. The Court explained:
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 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.
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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.
See Doc. 4 in Polk v. United States, 11-11252 at p. 4-5.
SO ORDERED.
s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: September 27, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, September 27, 2013, by electronic and/or ordinary mail.

s/Sakne Chami
Case Manager, [phone]

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