Lopez v. United States of America
ORDER DISMISSING CASE signed by Judge Pamela Pepper on 8/8/2017. 1 Petitioner's MOTION to Vacate, Set Aside or Correct Sentence (2255) / Petition for Writ of Audita Querela DENIED; petition DISMISSED with prejudice. (cc: all counsel, via mail to Arthur Lopez at USP Leavenworth)(cb)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
UNITED STATES OF AMERICA,
Case No. 99-CR-209-pp
(Civil Case No. 17-CV-1088-pp)
ARTHUR LOPEZ, JR.,
ORDER DENYING PETITION FOR
WRIT OF AUDITA QUERELA (DKT. NO. 532)
On May 22, 2017 defendant Arthur Lopez, Jr. filed a petition under the
All Writs Act, 28 U.S.C. §1651, for a “Writ of Audita Querela.” (Dkt. No. 532).
He argues that, at sentencing, the court did not make the findings required by
Amendment 790 of the Sentencing Guidelines, and asks the court to correct
his sentence. Id. at 15. He repeatedly asserts that the court should not recharacterize his motion as a motion for a sentence reduction under 18 U.S.C.
§3582,1 or as a civil motion to vacate, correct or set aside his sentence under
28 U.S.C. §2255. Id. at 5, 7-9. He also asks the court to appoint counsel to
represent him in these post-conviction proceedings. Id. at 16.
On June 22, 2012, Judge Charles N. Clevert, Jr. sentenced the
defendant to serve forty years in custody after his conviction for conspiracy to
Section 3582(c)(2) allows a court to modify a previously-imposed term of
imprisonment “based on a sentencing range that has subsequently been
lowered by the Sentencing Commission” upon motion of the defendant, or on
the court’s own motion.
distribute controlled substances. Dkt. No. 475. The court entered judgment on
July 6, 2012. Dkt. No. 477. The defendant did not appeal his conviction or
Now, almost five years post-judgment, the defendant argues that Judge
Clevert erred in imposing that sentence, because he did not make any
particularized findings on the record about relevant conduct. Dkt. No. 532 at 23. The defendant argues that that he was convicted of violating 21 U.S.C.
§§841(a)(1) and (b)(1)(A) (conspiracy to possess with intent to distribute five
kilograms or more of heroin), but that Judge Clevert determined his base
offense level by cross-referencing §2A1.1, the first-degree murder guideline. Id.
The defendant argues that Amendment 790 to the Sentencing Guidelines
required Judge Clevert to make particularized findings about that relevant
conduct, and that Judge Clevert did not do so. Id. at 3.
“[A]ny post-judgment motion in a criminal proceeding that fits the
description of a motion to vacate, set aside, or correct a sentence set forth in
the first paragraph of section 2255 should be treated as a section 2255
motion.” United States v. Carraway, 478 F.3d 845, 848 (7th Cir. 2007). The
defendant’s motion falls within the scope of §2255, which reads:
A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was
without 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, may move the court
which imposed the sentence to vacate, set aside or correct the
Because the defendant’s motion asks the court to “CORRECT the Original
Criminal Sentencing procedure in which this Court failed to make
particularized findings under the THREE-STEP ANALYSIS of § 1B1.3(a)(1)(B)
that have currently been CLARIFIED under AMENDMENT 790,” dkt. no. 532 at
15, it falls within the ambit of §2255.
Why, then, is the defendant so insistent that his motion is not a §2255
petition? Why does he argue, several times, that the court should not
characterize the petition as a § 2255 petition, and why does he insist on calling
the petition a petition for a writ of audita querela? The court suspects it is
because of the limitations period on §2255 petitions. Section §2255(f) imposes
a one-year statute of limitations that runs from the latest of “(1) the date on
which the judgment of conviction becomes final,” or “the date on which the
right asserted was initially recognized by the Supreme Court, if right has been
newly recognized by the Supreme Court and made retroactively applicable to
cases on collateral review,” or “the date on which the facts supporting the claim
or claims presented could have been discovered through the exercise of due
The defendant filed this petition nearly five years after Judge Clevert
entered the judgment of conviction. Amendment 790 to the U.S. Sentencing
Guidelines went into effect on November 1, 2015. See U.S.S.G. Suppl. to App’x
C, Amend. 790. Thus, the amendment became effective sixteen months before
the defendant filed this petition. Whether one considers the triggering event the
date of the judgment or the date that Amendment 790 went into effect2, the
defendant filed this petition too late.
To avoid that problem, the defendant goes to lengths to call his petition
something other than a §2255 petition. He insists that it is a petition for a writ
of audita querela. Naming his petition something other than a §2255 petition
does not solve the defendant’s statute of limitations problem. In 2004, the
Seventh Circuit rejected this effort to get around the §2255 requirements by
using different captioning. In Melton v. United States, 359 F.3d 855, 857 (7th
Cir. 2004), the petitioner styled his request as a petition for a writ of audita
querela. Id. at 856. The Seventh Circuit explained,
The ancient writ of audita querela, long ago abolished in
federal civil proceedings, see Fed. R. Civ. P. 60(b), has no
apparent relevant to criminal sentences. Black’s Law
Dictionary 126 (7th ed. 1999), describes it as a “writ available
to a judgment debtor who seeks a rehearing of a matter on
grounds of newly discovered evidence or newly existing legal
defenses.” [The defendant] is not a judgment debtor, and the
territory of new facts and law is occupied for civil matters by
Rule 60(b) and for criminal matters by Fed. R. Crim. P. 33 plus
Id. (citation omitted). The court concluded, “[p]risoners cannot avoid the
[§2255’s] rules by inventive captioning.” Id. (citations omitted).
The court notes that Amendment 790 did not effect any policy change. See
U.S.S.G. Suppl. To App’x C, Amendment 790. It “restructure[d] the guideline
and its commentary to set out more clearly the three-step analysis the court
applies in determining whether a defendant is accountable for the conduct of
others in a jointly undertaken criminal activity under [U.S.S.G.]
§1B1.3(a)(1)(B).” This was not a change in the law; it was a clarification of the
The defendant has filed an untimely §2255 petition, and seeks to avoid
the statute of limitations by what the Seventh Circuit has called “inventive
captioning.” The court must dismiss his petition as untimely.
Because the court must dismiss the defendant’s petition as untimely,
the court need not reach his request that the court appoint counsel to
The court DENIES the defendant’s petition under the All Writs Act, Writ
of Error Audita Querela. Dkt. No. 532. The court ORDERS that the petition is
DISMISSED, with prejudice.
Dated in Milwaukee, Wisconsin this 8th day of August, 2017.
BY THE COURT:
HON. PAMELA PEPPER
United States District Judge
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