GORDON v. UNITED STATES OF AMERICA

Filing 4

OPINION. Signed by Judge Robert B. Kugler on 10/28/2014. (TH, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JAVON GORDON,
:
:
Petitioner,
:
Civ. No. 14-5320 (RBK)
:
v.
:
OPINION
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Petitioner is a federal prisoner currently incarcerated at U.S.P. Victorville in Adelanto,
California. He is proceeding pro se with a petition for writ of audita querela filed pursuant to 28
U.S.C. § 1651. For the following reasons, the petition will be summarily dismissed.
II.

BACKGROUND

Petitioner pled guilty to two counts of transporting minors in interstate commerce to
engage in prostitution. On September 19, 2011, this Court entered judgment against petitioner
on those two counts. Petitioner received a sentence of 188 months imprisonment plus a lifetime
of supervised release. Petitioner did not file a direct appeal.
On September 14, 2012, petitioner filed a motion for an extension of time to file a § 2255
motion. That motion was docketed in petitioner’s criminal proceedings. (See Crim. No. 09-20.)
This Court has now denied that motion for an extension of time but ordered the Clerk to file the
motion for an extension of time as petitioner’s § 2255 motion in a separate, newly opened civil
action. Petitioner has been given thirty days in which to file his § 2255 motion on the proper
form in that newly opened action.

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In August, 2014, petitioner filed the instant petition for writ of audita querela. He seeks
review of his guilty plea in his petition. More specifically, petitioner claims that the government
did not keep its promise to recommend to the federal sentencing court that his federal sentence
run concurrently with a State of New Jersey sentence that he was currently serving.
III.

DISCUSSION

In Massey v. United States, 581 F.3d 172, 174 (3d Cir. 2009), the United States Court of
Appeals for the Third Circuit explained that a writ of audita querela is unavailable to a petitioner
whose claim is cognizable under § 2255. Indeed, that Court stated as follows:
“The All Writs Act is a residual source of authority to issue writs
that are not otherwise covered by statute.” Pennsylvania Bureau of
Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).
“Where a statute specifically addresses the particular issue at hand,
it is that authority, and not the All Writs Act, that is controlling.”
Id. The common law writ of audita querela permitted a defendant
to obtain “relief against a judgment or execution because of some
defense or discharge arising subsequent to the rendition of the
judgment.” United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir.
1990) (quoting Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure, § 2867, at 235 (1973)). Historically,
audita querela existed as a remedy primarily for judgment debtors.
Id.
While the writ of audita querela has been abolished in civil cases,
see Fed. R. Civ. P. 60(e), the writ is available in criminal cases to
the extent that it fills in gaps in the current system of postconviction relief. United States v. Holt, 417 F.3d 1172, 1175 (11th
Cir. 2005); United States v. Valdez-Pacheco, 237 F.3d 1077, 1079
(9th Cir. 2001). See also United States v. Richter, 510 F.3d 103,
104 (2d Cir. 2007) (stating that the writ is probably available
where there is a legal objection to a conviction that has arisen after
the conviction and that is not redressable pursuant to another postconviction remedy).
A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the
means to collateral challenge a federal conviction or sentence. The
District Court correctly held that Massey may not seek relief via a
petition for a writ of audita querela because his claim is cognizable
under § 2255. There is no gap to fill in the post-conviction
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remedies. Massey may not seek relief through a petition for a writ
of audita querela on the basis of his inability to satisfy the
requirements of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) for filing a second or successive § 2255
motion to vacate sentence. See Valdez-Pacheco, 237 F.3d at 1080
(noting that a “prisoner may not circumvent valid congressional
limitations on collateral attacks by asserting that those very
limitations create a gap in the postconviction remedies that must be
filed by the common law writs.” See also United States v.
Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000) (per curiam) stating
that prisoner may not resort to a writ of coram nobis merely
because he cannot meet AEDPA’s gatekeeping requirements).
Massey, 581 F.3d at 174. “Audita querela relief ordinarily requires that a defense to a judgment
arise after it was effected.” Rothwell v. United States, 563 F. App’x 220, 221 (3d Cir. 2014) (per
curiam) (citing Massey, 581 F.3d at 174). Only if § 2255 is “inadequate or ineffective” may a
petitioner resort to the All Writs Act, 28 U.S.C. § 1651, which authorizes audita querela relief in
certain circumstances. See id. (citing United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir.
2000) (per curiam)).
Petitioner does not show nor explain how § 2255 is inadequate or ineffective to raise his
claim that challenges his judgment and conviction in light of the government failing to make a
purported agreed upon recommendation at sentencing. 1 Indeed, petitioner currently has a newly
opened § 2255 civil action arising from his previous motion for an extension of time to file a §
2255 motion. As detailed above, the Court is simply awaiting for that motion be filed on the
1

If petitioner was challenging the execution of his federal sentence, then jurisdiction would
potentially be proper under 28 U.S.C. § 2241. See Parks v. Jordan, 573 F. App’x 233, 235 (3d
Cir. 2014) (per curiam) (“Section 2241 authorizes a federal district court to exercise jurisdiction
where the federal prisoner is challenging the execution, rather than the validity, of his sentence.”
) (citing Cardona v. Bledsoe, 681 F.3d 533, 535 (3d Cir. 2012)). However, it does not appear
from the face of the petition that petitioner is challenging the way that the Federal Bureau of
Prisons is executing his federal sentence, but rather, as explained above, that the government
failed to make the proper recommendation at sentencing. Furthermore, it is worth noting that the
proper venue to bring a § 2241 petition is in the district where petitioner is confined, see
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), which in this case would be the United States
District Court for the Central District of California.
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proper form. Thus, the instant petition for writ of audita querela will be summarily dismissed.
Petitioner is free of course to raise this issue in that § 2255 action, but is cautioned that
AEDPA’s statute of limitations is applied on a claim-by-claim basis. See Fielder v. Varner, 379
F.3d 113, 118 (3d Cir. 2004). It is further worth noting that merely because a claim may be
barred by AEDPA’s statute of limitations, does not mean that § 2255 is “inadequate or
ineffective” so as to permit petitioner to bypass AEDPA’s gatekeeping requirements. See Cradle
v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (“Section 2255 is not inadequate
or ineffective merely because the sentencing court does not grant relief, the one-year statute of
limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements
of . . . § 2255.”).
IV.

CONCLUSION

For the foregoing reasons, the petition for writ of audita querela is dismissed. An
appropriate order will be entered.

DATED: October 28, 2014
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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