Robinson v. United States of America

Filing 5

MEMORANDUM OF DECISION AND ORDER denying and dismissing 1 Petition for Writ of Audita Querela; denying as moot 2 MOTION to Appoint Counsel; and Court declines to issue a certificate of appealability. Signed by District Judge Martin Reidinger on 9/01/2017. (Pro se litigant served by US Mail.) (ejb)

waIN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00159-MR
[CRIMINAL CASE NO. 1:07-cr-00032-MR-4]

DARIAN K. ROBINSON,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
________________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on Petitioner’s “Petition for Writ of
Audita Querela Pursuant to 28 U.S.C. § 1651” [Doc. 1] and Petitioner’s
“Motion for Appointment of Counsel” [Doc. 2]. For the reasons that follow,
the Court dismisses the petition and denies Petitioner’s motion for the
appointment of counsel.
I.

BACKGROUND
On July 9, 2007, Petitioner pleaded guilty in this Court to conspiracy to

possess with intent to distribute cocaine base. [Criminal Case No. 1:07-cr00032-MR-4 (“CR”), Doc. 79]. Petitioner filed his first motion to vacate
pursuant to 28 U.S.C. § 2255 on December 28, 2009. [CR Doc. 199]. This
Court denied Petitioner’s motion with prejudice on the merits on December

28, 2010. [CR Doc. 201]. Petitioner filed a second motion to vacate pursuant
to § 2255 on August 30, 2012 [CR Doc. 253], and the Court dismissed this
motion as an unauthorized successive petition on January 16, 2013. [CR
Doc. 260]. Petitioner filed a third motion to vacate on February 24, 2014 [CR
Doc. 292], and the Court dismissed this motion as an unauthorized
successive petition on June 9, 2014. [CR Doc. 302]. Petitioner filed the
instant petition for writ of audita querela on June 16, 2017, in which he seeks
relief under the Supreme Court’s decision in Mathis v. United States, 136 S.
Ct. 2243 (2016). In his petition, Petitioner argues that his sentence was
enhanced pursuant to 21 U.S.C. § 851 because his prior conviction in the
State of New Jersey was treated as a drug trafficking offense, but that Mathis
shows this conclusion to be erroneous.
II.

STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255

Proceedings, sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the record of prior proceedings”
in order to determine whether a petitioner is entitled to any relief. After
having considered the record in this matter, the Court finds that no response
is necessary from the United States. Further, the Court finds that this matter

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can be resolved without an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
III.

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)
authorized the district court to entertain the defendant's motion pursuant to
the common law writ of coram nobis).

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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
otherwise be cognizable under § 2255 but for 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).
Here, the nature of the Petitioner’s claim is one that would be
cognizable under § 2255. That provision allows a prisoner to contest his
sentence by claiming “that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without
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jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack
....” 28 U.S.C. § 2255(a). Here, the Petitioner claims that, in light of Mathis,
his sentence was improperly enhanced and his mandatory minimum
sentence was unlawfully increased under 21 U.S.C. § 851 based on his prior
New Jersey drug conviction. While such an attack would not likely be
successful, see Stewart v. United States, Nos. 5:14-CR-90-FL-1, 5:16-CV432-FL, 2017 WL 3025867, at *8 (E.D.N.C. July 17, 2017) (noting that Mathis
was not made retroactively applicable to cases on collateral review), such an
issue is one that must be brought, if at all, pursuant to § 2255. Accordingly,
the writ of audita querela is not available to him as an alternative. See
Coleman v. United States, No. 7:07cv346-3-MU, 2007 WL 4303717, at *2
(W.D.N.C. Dec. 10, 2007) (“The fact that § 2255 relief is now unavailable to
Petitioner because of the Antiterrorism and Effective Death Penalty Act’s
limitation of the right to file a second or successive petition, does not make
§ 2255 unavailable to him for purposes of being permitted to file a writ of
audita querela.”), aff’d, 274 Fed. App’x 340 (4th Cir. 2008).
To the extent that Petitioner’s petition could be construed as a new
motion to vacate under § 2255, the petition would still be subject to dismissal.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), “[b]efore a second or successive
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application permitted by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order authorizing the
district court to consider the application.” Petitioner has previously filed three
§ 2255 petitions. Thus, Petitioner must first obtain an order from the United
States Court of Appeals for the Fourth Circuit before this Court will consider
any successive petition under 28 U.S.C. § 2255. Petitioner has not shown
that he has obtained the permission of the Fourth Circuit to file a successive
petition. See also 28 U.S.C. § 2255(h) (“[a] second or successive motion
must be certified as provided in section 2244 by a panel of the appropriate
court of appeals.”). Accordingly, this Court is without jurisdiction to consider
Petitioner’s petition under § 2255. See Burton v. Stewart, 549 U.S. 147, 153
(2007) (holding that failure of petitioner to obtain authorization to file a
“second or successive” petition deprived the district court of jurisdiction to
consider the second or successive petition “in the first place.”).
Petitioner also moves the Court for the appointment of counsel to
represent him in this post-conviction proceeding. [Doc. 2]. Prisoners have
no constitutional right to counsel in a post-conviction proceeding.
Pennsylvania v. Finley, 481 U.S. 551, 555-56 (1987); Rouse v. Lee, 339 F.3d
238, 250 (4th Cir. 2003), cert. denied, 541 U.S. 905 (2004). Nonetheless, the
Court may appoint counsel to represent a habeas petitioner when the
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interests of justice so require and the petitioner is financially unable to obtain
representation.

See 18 U.S.C. § 3006A(a)(2)(B).

In the instant case,

however, Petitioner has failed to demonstrate that the interests of justice
warrant the appointment of counsel. See United States v. Riley, 21 F. App’x
139, 141-42 (4th Cir. 2001).

Accordingly, Petitioner motion for the

appointment of counsel is denied.
IV.

CONCLUSION
For the reasons stated herein, this action is dismissed, and Petitioner’s

motion for the appointment of counsel is denied.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, this Court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 338 (2003)
(in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when
relief is denied on procedural grounds, a petitioner must establish both that
the dispositive procedural ruling is debatable and that the petition states a
debatable claim of the denial of a constitutional right).

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ORDER
IT IS, THEREFORE, ORDERED that:
(1)

Petitioner’s Petition for Writ of Audita Querela [Doc. 1] is DENIED
and DISMISSED;

(2)

Petitioner’s Motion for Appointment of Counsel [Doc. 2] is
DENIED AS MOOT; and

(3)

The Court declines to issue a certificate of appealability.

IT IS SO ORDERED.
Signed: September 1, 2017

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