Hodge v. United States of America

Filing 6

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that petitioner's application for a writ of audita querela and/or for writ of error coram nobis [ECF No. 1 ]is DENIED. IT IS FURTHER ORDERED that respondent's motion to dismiss [ECF No. 2 ] is GRANTED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge E. Richard Webber on 03/21/2013. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRADLEY HODGE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:12CV02191 ERW

MEMORANDUM AND ORDER
This matter is before the Court upon the application of Bradley Hodge, a federal
prisoner currently confined at the Memphis Federal Correctional Institution, for a writ
of audita querela [ECF No.1].1
Factual and Procedural Background
On October 9, 2008, the United States charged petitioner with three criminal
counts: (1) conspiracy to possess pseudoephedrine, a List 1 chemical, knowing and
having reason to believe it would be used to manufacture methamphetamine, in
violation of 21 U.S.C. § 841(c)(2); (2) possession of pseudoephedrine, a List 1
chemical, knowing and having reason to believe it would be used to manufacture

1

For statistical purposes and for docketing, the Clerk of Court opened this case
as a petition for writ of coram nobis.

methamphetamine, in violation of 21 U.S.C. § 841(c)(2); and (3) and conspiracy to
manufacture and distribute more than fifty grams of methamphetamine, a Schedule
II controlled substance, in violation of 21 U.S.C. 841(a)(1). Petitioner was appointed
counsel upon his indictment and he was represented by counsel at all times thereafter.
After a three-day jury trial, petitioner was found guilty on each count. Petitioner was
sentenced to three terms of 240 months’ imprisonment, with each term to run
concurrently. Petitioner appealed to the United States Court of Appeals for the Eighth
Circuit. See United States v. Hodge, 594 F.3d 614 (8th Cir. 2010). Petitioner argued
that the District Court erred in denying his motion for judgment of acquittal and in
determining his sentence. Id. at 616. Petitioner raised additional issues in a pro se
supplemental brief and motion. Id. at 620 n.2. The Eighth Circuit rejected these
arguments and affirmed in full petitioner’s conviction and sentence, specifically writing
that “[t]here was overwhelming evidence at trial of a conspiracy to manufacture
methamphetamine.” Id. at 618.
On February 17, 2011, petitioner filed a motion to vacate, set aside or correct his
sentence pursuant to 28 U.S.C. § 2255. As grounds for relief, petitioner alleged that
his trial counsel was ineffective, that his appellate counsel was ineffective, that the
United States committed prosecutorial misconduct, and that he was denied a fair trial.
On November 15, 2011, after a lengthy discussion of the issues raised, the Court
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denied petitioner’s motion to vacate and declined to issue him a certificate of
appealability. Petitioner failed to file a timely appeal of the denial of his motion to
vacate with the Eighth Circuit Court of Appeals.
Instead, on November 19, 2012, petitioner filed the instant petition for writ of
audita querela and/or writ of error coram nobis. Additionally, on November 20, 2012,
petitioner filed a motion for reconsideration of the denial of his motion to vacate, which
the Court will review under separate cover.
Petitioner’s Application for Writ of Audita Querela And/Or
Writ of Coram Nobis
Petitioner asserts that his sentences are invalid because he was denied a fair trial
before this Court. He claims that (1) the Court “previously overlooked and/or failed
to follow, address and entertain the mandatory procedures set forth in 21 U.S.C. § 851
during [petitioner’s] sentencing hearing held on March 5, 2009 creating a potential
error or ‘GAP’ in the proceedings” and (2) “the [petitioner’s] prior convictions under
21 U.S.C. § 851. . . are further invalid for enhancement purposes” under CarachuriRosendo v. Holder, 130 S.Ct. 2577 (2010) and its progeny.
Discussion
The All Writs Act, 28 U.S.C. § 1651, provides that federal courts “may issue all
writs necessary or appropriate in aid of their respective jurisdictions and agreeable to

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the usages and principles of law.” Petitioner argues that the writ of audita querela is
available in his case.2
Rule 60(b) of the Federal Rules of Civil Procedure abolishes the writ of audita
querela with respect to civil actions, but it is at least arguable that the writ is available
in criminal actions. See United States v. Johnson, 962 F.2d 579, 583 (7th Cir. 1992)
(questioning availability of audita querela in criminal actions); United States v. Reyes,
945 F.2d 862, 866 (5th Cir. 1991) (same); United States v. Holder, 936 F.2d 1, 3 (1st
Cir. 1991); United States v. Ayala, 894 F.2d 425, 426 (D.C. Cir. 1990); cf. United
States v. Morgan, 346 U.S. 502, 511 (1954) (although writ of coram nobis was
abolished in civil cases, writ survives in criminal actions). Assuming arguendo that the
writ of audita querela is still available, the instant motion should still be denied because
the writ is inappropriate in this case.
Audita querela is an old common-law writ which permits a defendant to obtain
“‘relief against a judgment or execution because of some defense or discharge arising
subsequent to the rendition of judgment.’” United States v. Johnson, 965 F.2d at 582
(quoting 11 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §
2

Petitioner has additionally argued for a writ of error coram nobis. A writ of
error coram nobis is available only when the applicant is not in custody. U.S. v.
Esogbue, 357 F.3d 532, 534 (5th Cir. 2004); U.S. v. Torres, 282 F.3d 1241, 1245 (10th
Cir. 2002). As petitioner is currently incarcerated, he is not entitled to pursue a writ
of error coram nobis.
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2687, at 325 (1975)). The question here is whether the issues in the current case are
the type of “post-judgment events” for which the writ can be granted.3
Petitioner’s Arguments for Audita Querela
A.

Petitioner’s Contention There Was A GAP in the Proceedings
Petitioner first claims that the Court “previously overlooked and/or failed to

follow, address and entertain the mandatory procedures set forth in 21 U.S.C. § 851
during [petitioner’s] sentencing hearing held on March 5, 2009 creating a potential
error or ‘GAP’ in the proceedings.”
Although it is not entirely clear, it appears that petitioner is attempting to argue
that the Court failed to follow certain statutory procedures, set forth in 21 U.S.C. § 851,
during his sentencing hearing relative to the government’s filing of a Criminal
Information seeking to use two of petitioner’s prior felony convictions as sentencing

3

Although the Court has declined to recharacterize the instant motion as one
brought pursuant to 28 U.S.C. § 2255, it feels compelled to note that audita querela is
not available to raise claims that could have been raised through a motion to vacate
sentence under § 2255. See United States v. Torres, 282 F.3d 1241, 1245 (10th
Cir.2002). Further, the remedy provided by § 2255 is not rendered inadequate merely
because petitioner is subject to a procedural bar. In re Vial, 115 F.3d 1192, 1194 n. 5
(4th Cir.1997) (en banc). Styling the motion as another type of proceeding does not
permit petitioner to evade the statutory requirements governing successive § 2255
motions. See United States v. Winestock, 340 F.3d 200, 203 (4th Cir.2003) (reasoning
that prisoners cannot circumvent the limitations on successive motions by attaching
other labels to their pleadings).
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enhancements. Petitioner asserts, in a conclusory manner, that the Court failed to
comply with “§§ 851(b),(c)(1)(c)(2),(d)(1) and (d)(2).” He asserts that the Court failed
to follow a multi-step procedure articulated in the statute prior to enhancing his
sentence, such that he was somehow prejudiced.4
On December 1, 2008, the United States filed a Criminal Information with this
Court in petitioner’s criminal case. See U.S. v. Hodges, 4:08CR420 ERW, ECF No.
75. The Criminal Information stated, in pertinent part:
1. The above defendant is presently indicated in the above-entitled case
with violations of Title 21, United States Code, Sections 846 and
841(a)(1).
2. The defendant was convicted on August 23, 2004, of the felony crime
of Possession of a Controlled Substance: Methamphetamine, in Case No.
CR304-0813-FX-J1, in the Circuit Court of Jefferson County, Missouri.
The defendant was also convicted on June 14, 2004, of the felony crime
of Possession of a Controlled Substance: Methamphetamine and
Possession of a Chemical with the Intent to Create a Controlled
Substance, in Case No. 03CR332663, in the Circuit Court of Franklin
County, Missouri.
3. Because of said convictions and the quantities of methamphetamine
charged in this Indictment, the penalty range applicable to defendant, if
convicted, is a minimum of ten years and not more than life imprisonment,
pursuant to Title 21, United States Code, Section 841(b)(1)(B).

4

The Court is unsure of the “prejudice” suffered by plaintiff. In actuality,
petitioner received a sentence which was significantly lower than the sentencing
guideline range.
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After the filing of the Criminal Information, the matter was tried to jury verdict. On
February 27, 2009, petitioner’s defense counsel, Eric Butts, filed a document entitled
“Defendant’s Objections to Presentence Investigation Report and Request for
Variance,” ECF No. 116, in which Mr. Butts specifically addressed the Criminal
Information filed by the Government and made several objections therein, although
none specifically to the two prior convictions listed in the Criminal Information. The
Court held a sentencing hearing on the matter on March 5, 2009, wherein all issues
relative to petitioner’s objections to the sentencing enhancement were addressed.5
Section 851 specifies the power of the Court to regulate the level of a sentence
that may be imposed in a federal criminal case, over which the district court has subject
matter jurisdiction pursuant to 18 U.S.C. § 3231, and the district court is not stripped
of jurisdiction when the government fails to comply with the provision’s procedural
requirements. Moreover, the requirements of § 851 can be waived by defendants, even
though the statute appears to use mandatory language.

See United States v.

Mezzanatto, 513 U.S. 196, 201-03 (listing examples of numerous other statutory and
constitutional guarantees that are waivable).

5

The Court notes, for the record, that petitioner never specifically denied the two
prior convictions in either the sentencing hearing or in the objections to the
presentencing report.
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The Court has reviewed the statutory requirements of § 851, as well as the
aforementioned record, and believes that it has fulfilled all of the obligations, not
previously waived by petitioner, under § 851. Regardless, the Court does not believe
that a writ of audita querela is the proper procedural posture to raise such an issue, as
normally such objections are raised on direct appeal or in a petitioner’s post-conviction
relief motion. Petitioner’s last-gasp effort of his “GAP argument” is simply unavailing
in this petition for writ of audita querela.
B.

Petitioner’s Arguments Based on Carachuri-Rosendo and Haltiwanger
Petitioner next argues that his prior convictions under 21 U.S.C. § 851 are

invalid for enhancement purposes under Carachuri-Rosendo v. Holder, 130 S.Ct. 2577
(2010) and the Eighth Circuit case U.S. v. Haltiwanger, 637 F.3d 881 (8th Cir. 2011).
In 2010, the Supreme Court held, in Carachuri-Rosendo, that the question of whether
a prior conviction is an “aggravated felony” as used in the Immigration and Nationality
Act (“INA”) must be resolved by looking at the offense for which the defendant was
actually convicted, not the offense for which he could have been convicted in view of
his conduct. In Haltiwanger, the Supreme Court vacated an Eighth Circuit Court of
Appeals decision and remanded it back to the Circuit for further consideration in light
of Carachuri–Rosendo. See Haltiwanger v. United States, 131 S.Ct. 81 (2010). On
remand, the Eighth Circuit held that the defendant's state conviction did not qualify as
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a prior felony drug offense in view of Carachuri–Rosendo. See Haltiwanger, 637 F.3d
at 883. The court noted that under Kansas law, a defendant's criminal history is tied
to the maximum term of imprisonment which may be imposed for a violation of the
drug tax stamp law. As such, only recidivists with three or more felonies involving
offenses against a person would be subject to a maximum term of imprisonment of
more than one year, i.e., a felony term. Because defendant Haltiwanger was not
classified as a recidivist, no sentence in excess of seven months of imprisonment, i.e.,
a misdemeanor term, should have been imposed. Therefore, because Haltiwanger was
never actually sentenced to serve more than one year based on his criminal history, the
Eighth Circuit determined it was not proper to consider his prior offense a felony, and
ordered the case remanded to the district court for resentencing. Id.
Petitioner appears to compare his circumstances to those in Haltiwanger, and
he asserts he is entitled to similar relief.6 He claims his federal sentence was enhanced
based on two prior convictions that would not qualify as “aggravated felonies” for
sentencing purposes under Carachuri-Rosendo. Based on the holding of Carachuri-

6

Unlike the defendant in Haltiwanger, who timely appealed his career offender
status, petitioner failed to mention in his either his direct appeal or in his motion for
post-conviction relief his assertion that he had been improperly designated a career
offender under U.S. S.G. § 4B 1.1. Interestingly, petitioner’s writ of certiorari was
denied by the Supreme Court only seven days before the opinion was issued in
Carachuri-Rosendo. Hodge v. United States, No. 09-10629 (June 7, 2010).
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Rosendo, petitioner argues that this Court erred in its calculation of his sentencing
guideline range. Because his actual time-served on his prior convictions was less than
one year, petitioner argues that they cannot be used to satisfy his designation as a
career offender pursuant to U.S. S.G. § 4B 1.1.

Thus, petitioner requests a

resentencing hearing to vacate his career criminal designation and to adjust his sentence
accordingly.
Unfortunately, the United States Supreme Court has not declared this new rule
of constitutional law retroactive. See Rodgers v. United States, 229 F.3d 704, 706 (8th
Cir.2000) (quoting In re Vial, 115 F.3d 1192, 1197 (4th Cir .1997)) (citation omitted)
(“[A] new rule of constitutional law has been ‘made retroactive to cases on collateral
review by the Supreme Court’ within the meaning of § 2255 only when the Supreme
Court declares the collateral availability of the rule in question, either by explicitly so
stating or by applying the rule in a collateral proceeding.”). Therefore, the reasoning
of these cases does not, at this time, retroactively alter petitioner’s sentence. See, e.g.,
United States v. Powell, 691 F.3d 554 (4th Cir. 2012). As such, this Court has no basis
under which to entertain petitioner’s arguments.

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C.

Can Petitioner’s Arguments Be Raised in An Application for Writ of
Audita Querela?
The true procedural question is whether petitioner’s arguments can be brought

in an application for writ of audita querela. The Court’s research indicates that they
cannot. Even assuming, for example, that petitioner’s assertions under the holding of
Carachuri-Rosendo had some merit, the courts that have considered the question of
whether a post-judgment change in the law is a grounds for audita querela relief have
answered in the negative. See Ayala, 894 F.2d at 429 n. 8; United States v. Kimberlin,
675 F.2d 866, 869 (7th Cir. 1982); Ames v. Sears, Roebuck and Co., 536 A.2d 563,
566 (1988). This is true even in cases where the post-conviction change in law could
not be raised in a collateral action, such as a motion to vacate brought pursuant to §
2255. Ayala, 894 F.2d at 429 n.8. As noted by the District of Columbia Circuit in
Ayala:
To be sure, not all post[-]judgment changes in law may be raised in a
§ 2255 proceeding. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060,
1075-77, 103 L.Ed.2d 334 (1989) (plurality). But we have little doubt
that a defendant challenging his conviction collaterally may not style his
motion as a petition for a writ of audita querela to evade the Supreme
Court’s painstakingly formulated “retroactivity” rules.
Id. This Court agrees. Furthermore, this reasoning extends to all the other types of
writs that may be issued under the All Writs Act. Thus, petitioner’s claims cannot be
properly brought before this Court under an application for writ of audita querela.
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The petitioner seems to argue that the writ of audita querela may fill a gap left
by § 2255, when a case does not apply retroactively on collateral review. However,
this Court respectively disagrees. The retroactivity rules relied upon by this Court are
one of § 2255’s valid gatekeeping requirements. And this Court will continue to follow
the majority of Courts who find that a motion for a writ of audita querela is an
inappropriate method to circumvent the laws of retroactivity and time limitations of 28
U.S.C. § 2255. See, e.g. United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th
Cir.2001) (“A prisoner may not circumvent valid congressional limitations on collateral
attacks by asserting that those very limitations create a gap in the post-conviction
remedies that must be filled by the common law writs.”); see also Massey v. United
States, 581 F.3d 172, 174 (3d Cir. 2009); Torres, 282 F.3d at 1246 (“Indeed, to allow
a petitioner to avoid the bar against successive § 2255 petitions by simply styling a
petition under a different name would severely erode the procedural restraints imposed
under 28 U.S.C. §§ 2244(b)(3) and 2255.”).
In light of the aforementioned, respondent’s motion to dismiss will be granted
and petitioner’s application for a writ of audita querela will be denied.

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Accordingly,
IT IS HEREBY ORDERED that petitioner’s application for a writ of audita
querela and/or for writ of error coram nobis [ECF No. 1]is DENIED.
IT IS FURTHER ORDERED that respondent’s motion to dismiss [ECF No.
2] is GRANTED.
A separate Judgment shall accompany this Memorandum and Order.
So Ordered this 21st day of March, 2013.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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