Bryant v. USA

Filing 2

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that petitioner's application for writ of audita querela is DENIED and DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability will issue as petitioner has not shown a denial of a constitutional right. An Order of Dismissal shall be filed with this Memorandum and Order. Signed by District Judge Stephen N. Limbaugh, Jr on 11/1/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
WELDON B. BRYANT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:13CV132 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on petitioner’s application for writ of audita
querela. For the reasons set forth below, the petition will be denied and dismissed.
Background
On February 13, 2009, petitioner was found guilty by a jury of the offense of mail
fraud and, on June 24, 2009, this Court sentenced petitioner to a term of 18 months’
imprisonment.1 See United States v. Bryant, 1:08CR121 SNLJ (E.D. Mo. 2009).
Petitioner filed an appeal of his judgment and sentence with the Eighth Circuit Court of
Appeals, however, the judgment of the District Court was affirmed on June 4, 2010. See
United States v. Bryant, No. 09-2532 (8th Cir. 2010).
Petitioner filed a motion to vacate, correct or set aside his sentence pursuant to 28
U.S.C. § 2255 in this Court on March 8, 2011. See Bryant v. United States, 1:11CV41
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An Amended Judgment was entered on September 9, 2009, corrected only for a
clerical mistake on the special assessment. Petitioner’s sentence remained unchanged.

SNLJ (E.D. Mo. 2011). The Court denied petitioner’s motion on December 28, 2011,
and the Eighth Circuit Court of Appeals affirmed the judgment of the District Court on
August 21, 2012. See Bryant v. United States, No. 12-1994 (8th Cir. 2012). The
mandate issued on October 12, 2012.
Petitioner filed the instant application for writ of audita querela on September 13,
2013. Petitioner argues that his Constitutional rights were violated when the Eighth
Circuit refused to allow him full briefing on his appeal of the denial of his motion to
vacate. See Bryant v. United States, No. 12-1994 (8th Cir. 2012).
Legal Standard
Federal Courts have authority to issue a writ of audita querela under the All Writs
Act, 28 U.S.C. § 1651(a). “[T]he All Writs Act is a residual source of authority to issue
writs that are not otherwise covered by statute. Where a statute specifically addresses
the particular issue at hand, it is that authority, and not the All Writs Act, that is
controlling.”

Carlisle v. U.S., 517 U.S. 416, 429 (1996).

Audita querela is an

“extraordinary remedy,” and should only be used in extraordinary circumstances. Kerr
v. U.S. Dist. Court for the Northern Dist. of California, 426 U.S. 394, 403 (1976).
Audita querela, coram nobis, and some other common law writs, have been
expressly "abolished" in federal civil cases by Rule 60(e) of the Federal Rules of Civil
Procedure. However, the Supreme Court has held that another ancient writ, coram nobis,
can be used, under certain very rare circumstances, to review a judgment in a federal
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criminal case. United States v. Morgan, 346 U.S. 502, 506, n. 4 (1954) (explaining that
coram nobis, like the post-conviction remedy provided by 28 U.S.C. § 2255, is to be
sought by a motion in a criminal case, so Rule 60 of the Federal Rules of Civil Procedure
is not directly applicable). Relying on Morgan, some federal courts have concluded that
audita querela might also be available, in very rare circumstances, as a means of
post-conviction review in federal criminal cases. See, e.g., United States v. Reyes, 945
F.2d 862, 865 (5th Cir. 1991) ("because the Supreme Court in . . . [Morgan] held that the
writ of coram nobis was still available in criminal proceedings, it is likely that Rule 60(b)
did not abolish the writ of audita querela to the extent it might otherwise have been
available to attack a criminal conviction"); United States v. Torres, 282 F.3d 1241, 1245,
n. 6 (10th Cir. 2002) ("the Supreme Court held in . . . [Morgan] that the writ of coram
nobis could still be pursued in the criminal contexts under the All Writs Act," and like
four other federal circuit courts, "we assume for purposes of this case only that a prisoner
may [also] seek a writ of audita querela under the All Writs Act").
Discussion
There is no appeal as of right for federal movants under 28 U.S.C. § 2255. Rather,
a movant must obtain leave to appeal. See 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
The issuance of a certificate of appealability is a jurisdictional prerequisite to appeal.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Section 2253(c) permits the issuance
of a certificate of appealability only where a petitioner has made a “substantial showing
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of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 483 (2000).
Under the controlling standard, a petitioner must show “that reasonable jurists could
debate whether (or for that matter, agree that) the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve encouragement
to proceed further. Miller-El, 537 U.S. at 336.
There was no certificate of appealability granted to petitioner in his § 2255. In
other words, this Court did not believe that petitioner had made a substantial showing of
a denial of a constitutional right and made the decision not to grant petitioner a certificate
of appealability. However, when petitioner filed his notice of appeal signifying his intent
to appeal the dismissal of the denial of his motion to vacate, the Court of Appeals was
then obligated to construe his notice of appeal as a request for a certificate of
appealability. See Fed.R.App.P. 22(b)(2); see also, Slack, 529 U.S. at 483. Thus, the
Eighth Circuit reviewed petitioner’s motion to vacate, as well as this Court’s denial of
his motion, sua sponte, to see if there was any way under which petitioner could show
a substantial showing of a denial of a constitutional right. This Court can only surmise,
given the Eighth Circuit’s affirmance of the denial of the motion to vacate, that no such
denial of a constitutional right was found. Thus, the Eighth Circuit did not grant
petitioner a certificate of appealability and he was not allowed to appeal his § 2255.

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Moreover, according to the Judgment affirming the denial of the motion to vacate,
the order was summarily affirmed in accordance with Eighth Circuit Local Rule 47A(a).
The Local Rule states, in pertinent part:
Rule 47A: SUMMARY DISPOSITION
(a) On Motion of Court. The Court on its own motion may summarily
dispose of any appeal without notice. However, in an in forma pauperis
appeal in which a certificate of appealability has been issued, the Court will
afford 14 days’ notice before entering summary disposition if the briefs
have not been filed.
The Court will dismiss the appeal if it is not within the court’s jurisdiction
or is frivolous and entirely without merit. The court may affirm or reverse
when the questions presented do not require further consideration.
Given the aforementioned, the Court can again only surmise that petitioner’s
application for relief was found to be without merit.2 However, it is not within the
bounds of this Court to ascertain or comment on the reasoning behind a judgment made
by the Court of Appeals.
Although petitioner may truly believe his due process rights have been violated
in some way, both this Court and the Eighth Circuit Court of Appeals have provided
petitioner many opportunities to air his views before the judiciary. Petitioner may not

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The Court notes that a review of the appellate docket shows that petitioner has
sought relief from the Eighth Circuit’s final judgment on at least three occasions, by
filing a motion to recall the mandate on November 19, 2012, a motion for relief from a
denial of the motion to recall the mandate on March 25, 2013 and a motion for
reconsideration of the denial of a motion to recall the mandate on October 28, 2013.
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agree with the end result of the process, but a full review of the record shows that he was
provided all of the process he was due.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for writ of audita
querela is DENIED and DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability will issue as
petitioner has not shown a denial of a constitutional right.
An Order of Dismissal shall be filed with this Memorandum and Order.
Dated this 1st day of November, 2013.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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