Powers v. United States of America
Filing
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MEMORANDUM OF DECISION AND ORDER denying and dismissing 1 Petition for Writ of Audita Querela/Writ of Error Coram Nobis Pursuant to the All Writs Act. Signed by District Judge Martin Reidinger on 6/27/2017. (Pro se litigant served by US Mail.) (ejb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO: 1:17-cv-00143-MR
[Criminal Case No: 2:93-cr-00019-MR-1]
GRADY WILLIAM POWERS,
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Petitioner,
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vs.
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UNITED STATES OF AMERICA, )
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Respondent.
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___________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court upon Petitioner’s pro se “Petition
for Writ of Audita Querela/Writ of Error Coram Nobis Pursuant to the All Writs
Act.” [Doc. 1]. No response is necessary from the Government.
I.
BACKGROUND
On September 24, 1993, after a jury trial, Petitioner was convicted in
this Court of engaging and attempting to engage in a sexual act with a minor
under the age of 12, in violation of 18 U.S.C. § 2241(c). [Criminal Case No.
2:93-cr-00019-MR, Doc. 1-1: Judgment]. On January 10, 1994, the Court
sentenced Petitioner to 480 months’ imprisonment.
[Id.].
Petitioner
appealed, and on July 14, 1995, the Fourth Circuit affirmed the conviction
and sentence in a published opinion. United States v. Powers, 59 F.3d 1460
(4th Cir. 1995). The U.S. Supreme Court denied certiorari on January 16,
1996. Powers v. United States, 516 U.S. 1077 (1996).
On February 9, 1999, Petitioner filed a habeas petition under 28 U.S.C.
§ 2254 in the Middle District of Florida, challenging his federal judgment.
That court construed the § 2254 petition as a motion to vacate under 28
U.S.C. § 2255, and transferred the action to this Court on October 19, 2000.
On January 11, 2001, this Court denied the motion to vacate with prejudice.
[Civil Case No. 2:00-cv-00246-WLO, Doc. 1].
Petitioner filed a second § 2255 Motion to Vacate in this Court on
August 16, 2012, seeking relief under the Fourth Circuit’s decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc). [Civil Case No.
No. 2:12-cv-00071-MR, Doc. 1]. The Court denied and dismissed the Motion
on September 6, 2013. [Id., Doc. 3.
Petitioner filed the instant pro se Petition on May 25, 2017. [Doc. 1].
In his Petition, he alleges the Federal Bureau of Prisons’ (“BOP”) has failed
to provide him adequate medical care.
[Doc. 1 at 4-5].
Specifically,
Petitioner alleges he suffers from asthma, which has worsened with age.
Since his incarceration, he has developed COPD and acid reflux, which he
claims is aggravated by the inhalers he has to use to breathe. Petitioner
asserts that the BOP has a policy requiring inmates to purchase their
medication through the prison commissary at a “30% mark up” and that
Health Services at the prison where he is incarcerated confiscates all
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medication provided by doctors outside the prison and replaces them with
ineffective generic medication. [Id. at 4-5]. Petitioner contends that he
cannot receive adequate medical care or afford to purchase medication at
the prison. He seeks to have his sentence vacated and to be released from
custody on these grounds. [Id. at 8].
II.
DISCUSSION
“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 11 C. Wright &
A. Miller, Federal Practice and Procedure § 2867, at 235 (1973)).
Put
another way, “a writ of audita querela is used to challenge a judgment that
was correct at the time rendered but which is rendered infirm by matters
which arise after its rendition.” United States v. Torres, 282 F.3d 1241, 1245
n.6 (10th Cir. 2002) (internal quotation marks omitted). The authority of
federal courts to recognize common law post-conviction remedies is found
in the All Writs Act, 28 U.S.C. § 1651(a) (2016), which provides that federal
courts “may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” See United
States v. Morgan, 346 U.S. 502, 506-10 (1954) (holding that § 1651(a)
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authorized the district court to entertain the defendant’s motion pursuant to
the common law writ of coram nobis).1
While the writ of audita querela has been abolished in civil cases, see
Fed. R. Civ. P. 60(e), a number of circuits have recognized that the writ still
may be available in criminal cases to the extent that it fills in gaps in the
current system of post-conviction relief. See Massey v. United States, 581
F.3d 172, 174 (3d Cir. 2009) (collecting cases). Section 1651 “is a residual
source of authority to issue writs that are not otherwise covered by statute,”
and, “[w]here a statute specifically addresses [a] particular issue . . ., it is that
authority, and not the All Writs Act, that is controlling.” Carlisle v. United
States, 517 U.S. 416, 429 (1996) (internal quotation marks omitted). Thus,
prisoners may not resort to the All Writs Act when their challenges would be
cognizable under § 2255 or to otherwise circumvent the statutory limits on
collateral attacks. See United States v. Rhines, 640 F.3d 69, 72 (3d Cir.
2011); United States v. Gamboa, 608 F.3d 492, 494–95 (9th Cir. 2010); cf.
In re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) (en banc) (stating that §
2255 is not inadequate or ineffective to test legality of detention merely
because petitioner is unable to obtain relief under § 2255).
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As Petitioner acknowledges, he may not obtain relief by way of a writ of coram nobis,
as it is available only to those no longer in custody. See, e.g., United States v. Torres,
282 F.3d 1241, 1245 (10th Cir. 2002).
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Here, Petitioner’s claim would not be cognizable under § 2255 because
Petitioner does not allege any legal defect related to either his trial or the
sentence imposed. Instead, he seeks to have his sentence vacated on
equitable grounds, arguing that he should be released so that he may obtain
necessary treatment for his chronic illnesses. [Doc. 1 at 8].
The courts of appeal that have addressed the issue of where audita
querela might fill a gap in the current system of post-conviction relief have
done so primarily in cases where immigrants facing deportation because of
their prior criminal convictions have attempted to use audita querela to argue
that deportation would be an unduly harsh consequence. See Ejelonu v.
INS, 355 F.3d 539 (6th Cir. 2004), vacated and reh'g en banc granted (July
27, 2004), appeal dismissed (Oct. 18, 2004); Doe v. INS, 120 F.3d 200 (9th
Cir. 1997); United States v. LaPlante, 57 F.3d 252 (2d Cir. 1995); United
States v. Johnson, 962 F.2d 579 (7th Cir. 1992); United States v. Reyes, 945
F.2d 862 (5th Cir. 1991); United States v. Holder, 936 F.2d 1 (1st Cir. 1991);
Ayala, 894 F.2d at 427. With the exception of the Sixth Circuit's sincevacated Ejelonu decision, each of these immigration cases concluded that
audita querela, if available, must be brought on “legal” rather than “equitable”
grounds.2 Doe, 120 F.3d at 204 (“[A] writ of audita querela, if it survives at
2
In Ejelonu, the petitioner, who was represented by counsel, sought to appeal the Board
of Immigration Appeals’ decision dismissing her appeal of a deportation order. 355 F.3d
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all, is available only if a defendant has a legal defense or discharge to the
underlying judgment.”) (footnotes omitted); LaPlante, 57 F.3d at 253 (“Audita
querela is probably available where there is a legal, as contrasted with an
equitable, objection to a conviction[.]”); Johnson, 962 F.2d at 582 (“Audita
querela . . . provides relief from the consequences of a conviction when a
defense or discharge arises subsequent to entry of the final judgment. The
defense or discharge must be a legal defect in the conviction, or in the
sentence which taints the conviction.
Equities or gross injustice, in
themselves, will not satisfy the legal objection requirement and will not
provide a basis for relief.”); Holder, 936 F.2d at 5 (“if available at all, the writ
of audita querela can only be available where there is a legal objection to a
conviction, which has arisen subsequent to that conviction”); Reyes, 945
F.2d at 866 (quoting Holder); Ayala, 894 F.2d at 429 (concluding that the “socalled ‘pure equity’ variant of audita querela finds no support in the historical
definition of the writ,” and questioning “the authority of federal courts to use
it as a ‘gap filler’ under the All Writs Act”).
539, 543 (6th Cir. 2004). In a two-to-one decision, a panel of the Sixth Circuit construed
the petitioner’s appeal as a petition for writ of audita querela, id. at 544, and held that it
had the power to “mitigate a judgment's collateral consequences through a writ of audita
querela issued for equitable reasons, regardless of the presence of a legal defect in the
original proceeding[,]” id. at 548. The panel’s decision subsequently was vacated and
rehearing en banc granted. Prior to rehearing, the appeal was dismissed.
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In United States v. Miller, the Fifth Circuit Court of Appeals addressed
the applicability of audita querela in a non-immigration case. 599 F.3d 484
(5th Cir. 2010).
Miller had pleaded guilty to conducting a monetary
transaction with criminally-derived funds and evading income tax. Id. at 485.
As part of his sentence, he was ordered to pay restitution.
Id.
Miller
subsequently learned that the victim in the case had recovered $170,405.00
of the funds that Miller had embezzled and that the Government had failed
to credit this sum against his outstanding restitution obligation. Id. at 486.
Miller filed a petition for a writ of audita querela, asserting that the district
court's restitution order had been rendered infirm by the recovery of the funds
and the Government's failure to credit that sum against his outstanding
obligation. Id. at 486-87. The Fifth Circuit held that, “if the writ survives, it
can only be available where there is a legal objection to a judgment which
has arisen subsequent to that judgment” and that “[p]urely equitable grounds
for relief do not justify the issuance of a writ of audita querela." Id. at 488
(citing Reyes, 945 F.2d at 866).
As noted, Petitioner raises no legal objection to his convictions or
sentence. Petitioner, rather, asserts that the conditions of his confinement
as they may pertain to his ability to obtain medical care, are such that in
equity he should be entitled to a reduction in his sentence. Based upon the
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foregoing, the Court concludes that Petitioner has failed to identify a legal
defect or discharge that renders his judgment infirm. Accordingly, he is not
entitled to a writ of audita querela, and his petition must be denied.
ORDER
IT IS, THEREFORE, ORDERED that the “Petition for Writ of Audita
Querela/Writ of Error Coram Nobis Pursuant to the All Writs Act” [Doc. 1] is
DENIED and DISMISSED.
IT IS SO ORDERED.
Signed: June 27, 2017
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