Rath v. USA
ORDER OF DISMISSAL ADOPTING REPORT AND RECOMMENDATIONS for 6 Report and Recommendation. ORDERED that all motions not previously ruled on are hereby DENIED. Signed by Judge Ron Clark on 8/5/2013. (kls, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
VICETH RATH, #12157-078
UNITED STATES OF AMERICA
CIVIL ACTION NO.4:10cv434
CRIM NO. 4:05cr76(1)
ORDER OF DISMISSAL
This civil action was referred to United States Magistrate Judge Amos L. Mazzant, who
issued a Report and Recommendation concluding that the writ of audita querela should be dismissed
with prejudice because the appropriate means of relief is through a motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255. Movant filed objections.
In Movant’s objections, he argues that a writ of audita querela is appropriate because it is
the only means of relief in his case. However, Movant has not met the requirements of audita
querela by showing that he is challenging a judgment that was correct at the time it was rendered,
but is now incorrect because of circumstances arising after the judgment was issued. See United
States v. Miller, 599 F.3d 484, 489 (5th Cir. 2010) (“audita querela is used to challenge a judgment
that was correct at the time it was rendered, but which is made infirm by matters that arose after its
rendition”). Furthermore, as the Magistrate Judge notes in his Report and Recommendations, the
appropriate vehicle for relief in Movant’s case is a motion filed pursuant to 28 U.S.C. § 2255. Thus,
audita querela may not be used since Movant may seek relief under § 2255. United States v. Banda,
1 F.3d 354, 356 (5th Cir. 1993) (prisoner may not seek a writ of audita querela if he may seek relief
under § 2255). Movant provides a copy of a Ninth Circuit case, Kessack v. United States, 2006 U.S.
Dist. LEXIS 80734 (W.D. Wash., Nov. 1, 2006), asserting that it supports his position. However,
he has provided no supportive case law from the Fifth Circuit. Moreover, the movant in Kessack
showed that his judgment was correct at the time it was rendered, but later became incorrect based
on circumstances arising after the judgment was issued. Movant has failed to make such a showing.
Movant’s objections are without merit.
The Report of the Magistrate Judge, which contains his proposed findings of fact and
recommendations for the disposition of such action, has been presented for consideration. Having
made a de novo review of the objections raised by Movant to the Report, the Court is of the opinion
that the findings and conclusions of the Magistrate Judge are correct, and adopts the same as the
findings and conclusions of the Court.
It is accordingly
ORDERED that the writ of audita querela is DISMISSED with prejudice. Movant may
file a motion to vacate, set aside, or correct sentence pursuant to § 2255. However, Movant, having
filed a prior motion pursuant to § 2255, see Cause No. 4:07cv237, is now subject to having a new
§ 2255 motion being deemed as a successive claim. He may seek permission from the Court of
Appeals for the Fifth Circuit to file a successive § 2255 motion. Movant may obtain a standard §
2255 form from the law library. There are no filing fees to file a § 2255 motion. It is finally
ORDERED that all motions not previously ruled on are hereby DENIED.
So ORDERED and SIGNED this 5 day of August, 2013.
Ron Clark, United States District Judge
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