Sheppard v. United States of America

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that petitioner's motion for leave to proceed in forma pauperis [ECF No. 4] is GRANTED. IT IS FURTHER ORDERED that petitioner's petition pursuant to 28 U.S.C. Section 1651 is DISMISSED. Terminate Case. Signed by District Judge Catherine D. Perry on August 12, 2013. (MCB)

Sheppard v. United States of America

Doc. 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
FORESTELL NORMAN SHEPPARD, )
)
Petitioner,
)
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)

No. 4:13 CV 1437 CDP

MEMORANDUM AND ORDER
Petitioner seeks relief under the All Writs Act, 28 U.S.C. § 1651, in the form
of a petition for writ of audita querela. I sentenced petitioner to a 240-month term
of imprisonment in January 2000 for drug charges. United States v. Sheppard,
4:99CR204 CDP (E.D. Mo.). Petitioner filed a motion to vacate, set aside, or correct
sentence in 2002, and I denied the motion on the merits in November 2004. Sheppard
v. United States, 4:02CV341 CDP (E.D. Mo.). Petitioner now seeks a reduction in
his sentence based on the United States Supreme Court’s decisions in Alleyne v.
United States, 133 S. Ct. 2151 (2013),1 United States v. Booker, 125 S. Ct. 738
(2005), and in other cases involving federal sentencing.

1

In Alleyne, the Supreme Court of the United States held that any fact that
increases the mandatory minimum sentence for a crime is an “element” of the crime,
not a “sentencing factor,” that must be submitted to a jury. Alleyne, 133 S. Ct. at
2155.

Dockets.Justia.com

This Court has consistently held that post-judgment changes in law are not
grounds for issuance of a writ of audita querela. E.g., Mitchell v. United States, 2013
WL 1149071 * 1-2 (E.D. Mo.); see also United States v. Ayala, 894 F.2d 425, 429 n.
8 (D.C. Cir. 1990). Petitioner has not presented any reason why his case should be
decided differently.
Accordingly,
IT IS HEREBY ORDERED that petitioner’s motion for leave to proceed in
forma pauperis [ECF No. 4] is GRANTED.
IT IS FURTHER ORDERED that petitioner’s petition pursuant to 28 U.S.C.
§ 1651 is DISMISSED.
Dated this 12th day of August, 2013.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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