Hodge v. United States of America
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that petitioner's motion for reconsideration is DENIED. Signed by District Judge E. Richard Webber on April 25, 2013. (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:12CV02191 ERW
MEMORANDUM AND ORDER
This matter is before the Court upon petitioner’s motion for reconsideration of this
Court’s dismissal of his writ of audita querela.
In a lengthy Memorandum and Order issued on March 21, 2013, this Court denied
petitioner’s motion, both on procedural grounds, as well as on the merits of petitioner’s
arguments. In his motion for reconsideration petitioner extensively relies on a case out
of the Western District of Washington, Kessack v. United States, No. CV-05-1828-TSZ,
2008 WL 189, 679 (W.D. Wash. Jan. 18, 2008), to argue that the dismissal of his
application for writ of audita querela should be reversed.
In Kessack, the District Court granted a writ of audita querela and ordered the
resentencing of a petitioner who presented issues under United States v. Booker, 543
U.S. 220 (2005). However, district courts in other circuits that have faced similar audita
querela petitions since Kessack have declined to follow the court’s reasoning on the
availablility of a writ of audita querela.
See, e.g., Smith v. United States, No.
4:95CR19-05JLH, 2009 WL 3003938 (E.D.Ark. Sept. 15, 2009); Neuhausser v. United
States, No. 1:98-CR-48, 2009 WL 2883742 (S.D.Ohio Sept. 2, 2009); Luna v. United
States, No. CV F 95-5036 AWI, 2009 WL 2351716 (E.D.Cal. July 29, 2009); Gamboa
v. United States, No. CR93-2090(JET)FDB, 2009 WL 1175315 (W.D. Wash. April 29,
2009); United States v. Loveless, No. 4:95CR3054, 2010WL489534 (D.Neb. February
This Court has previously determined that: (1) audita querela is not available to
petitioner because his claims would be cognizable under § 2255, (2) Carachuri-Rosendo
v. Holder, 130 S.Ct. 2577 (2010) does not apply retroactively on collateral review and
(3) petitioner cannot use audita querela as a mechanism for circumventing the rules
governing § 2255 cases or the Supreme Court's retroactivity rules. This Court sees no
reason to reverse its earlier opinion.
IT IS HEREBY ORDERED that petitioner’s motion for reconsideration is
So Ordered this 25th day of April, 2013.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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