U.S. v. Holder

• Citation: 936 F.2d 1,105 A.L.R.Fed. 871
• Decision Date: 10 June 1991
• Docket Number: No. 90-1852,90-1852
• Parties: UNITED STATES, Appellee, v. Ewart Mark HOLDER, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1

936 F.2d 1

105 A.L.R.Fed. 871

UNITED STATES, Appellee, v. Ewart Mark HOLDER, Defendant, Appellant.

No. 90-1852.

United States Court of Appeals First Circuit.

Submitted March 19, 1991.

Decided June 10, 1991.

Ewart Mark Holder, on brief, pro se.

Daniel F. Lopez Romo, U.S. Atty., and Carlos A. Perez, Asst. U.S. Atty., on brief, for appellee.

Before BREYER, Chief Judge, CAMPBELL and CYR, Circuit Judges.

PER CURIAM.

The appellant, Ewart Mark Holder, a citizen of Guyana, pled guilty in 1974, in the District Court of Puerto Rico, to importing 5.45 pounds of marijuana into the customs territory of the United States. 21 U.S.C. Sec. 952(a). Imposition of sentence was "withheld" ¹ and appellant was placed on probation for a period of five years.

In May 1990, appellant filed in that court a petition for "writ of audita querela, writ of error coram nobis, or, relief from judgement [sic] 28 U.S.C. Sec. 1651(a)." The district court initially believed that it lacked venue because appellant was residing in the Virgin Islands and so transferred the petition to the District Court for the District of the Virgin Islands. The District Court for the District of the Virgin Islands determined, however, that it lacked jurisdiction and so dismissed the matter. ² Appellant then moved to reopen the petition in the District Court of Puerto Rico. The district court took jurisdiction and denied the petition on its merits. United States v. Holder, 741 F.Supp. 27 (D.P.R.1990). ³ Appellant has appealed. We affirm.

Appellant would like to obtain permanent resident status in the United States. He is unable to do so, however, because of his 1974 conviction. 8 U.S.C. Sec. 1182(a)(23) (any alien who has been convicted of a violation of a controlled substance law is ineligible to receive a visa and is excluded from admission into the United States). Apparently, this exclusion would not apply to appellant if his conviction is vacated. And, that is what appellant is seeking by way of his petition. ⁴

Audita querela is "[t]he name of a common law writ constituting the initial process in an action brought by a judgment defendant to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise." Black's Law Dictionary 120 (5th ed. 1979). This writ was expressly abolished by amendments to Fed.R.Civ.P. 60(b), effective in 1948. ⁵ We will assume without deciding, however, on the basis of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), which held that the writ of coram nobis was still available in criminal proceedings, that the writ of audita querela may still be available in appropriate circumstances in criminal proceedings notwithstanding the language of Rule 60(b). See e.g. United States v. Ayala, 894 F.2d 425, 428 n. 4 (D.C.Cir.1990); United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982); United States v. Acholonu, 717 F.Supp. 709, 710 (D.Nev.1989). We emphasize that nothing herein is meant to suggest our affirmative resolution of the difficult question of the survival and availability of this ancient and some might think outmoded writ.

Assuming arguendo the writ's availability in a criminal setting, we still must resolve its scope, and the Supreme Court itself, has recognized that "few courts ever have agreed as to what circumstances would justify relief under these old remedies", i.e., the common law writs of coram nobis and audita querela. Klapprott v. United States, 335 U.S. 601, 614, 69 S.Ct. 384, 390, 93 L.Ed. 1099 (1949) (opinion of Justice Black). Black's Law Dictionary, supra, instructs that the writ is sought "to obtain relief against the consequences of the judgment on account of some matter of defense or discharge arising since its rendition and which could not be taken advantage of otherwise." Although the appellant seeks relief against the consequences of his 1974 conviction, i.e., he seeks relief from the bar to permanent resident status he presumably could obtain except for his conviction, and contends that he married a United States citizen in 1981 and has "demonstrated rehabilitation over a very substantial period of time," he offers no defense to, or evidence which could support a discharge from, that conviction which has arisen since its rendition. See footnote 3.

We agree with the D.C. Circuit Court of Appeals that the writ of audita querela does not and cannot, under any stretch of imagination, provide a purely equitable basis for relief independent of any legal defect in the underlying judgment. United States v. Ayala, 894 F.2d at 429. The Ayala court disagreed with United States v. Ghebreziabher, 701 F.Supp. 115 (E.D.La.1988) and United States v. Salgado, 692 F.Supp. 1265 (E.D.Wash.1988), insofar as those courts found the issuance of the writ of audita querela appropriate even in the absence of some legal objection to a criminal conviction. Id.

It is fairly evident from the court's opinion in Salgado that the equities of that case motivated that court to find some authority pursuant to which it could render what even the government in that case perceived as the just result. Mr. Salgado first entered this country lawfully in 1943, married a United States citizen in 1947, and was granted permanent resident alien status in 1948. In 1964, he pled guilty to a charge of failing to pay transfer tax on a small quantity of marijuana and was sentenced to two years of imprisonment, during which time he went through deportation proceedings. He was ordered deported. After serving approximately eighteen months, he was released and self-deported. Advised that he could not re-enter the United States for two years, he remained in Mexico until 1969, then re-entered the United States using the green card which had never been taken from him. He worked steadily for the next fifteen years, was inspected on numerous occasions by Immigration and Naturalization Service (INS) agents, and left and re-entered the country from time to time, all without incident. In 1984, Mr. Salgado applied for Social Security benefits. It was then determined that, insofar as the INS was concerned, he was in the country unlawfully. He was later arrested as an illegal alien and deportation proceedings were commenced. United States v. Salgado, 692 F.Supp. at 1266.

The district court in Salgado believed that "under the totality of the circumstances, it would be a gross injustice to allow this man, who has by all accounts been a model resident for forty-five years save for a single period of unlawful conduct, to effectively serve a life sentence, and for his family to be deprived of benefits from a fund he has paid into throughout his working life." Id. at 1268. The court believed that the definition of audita querela "appears sufficiently broad to encompass the scenario presented here where Mr. Salgado seeks 'relief against the consequences of the judgment;' and where a refusal to grant such relief would strip him of access to newly created rights which he would otherwise clearly be entitled to by operation of law." Id. at 1269 (emphasis in the original).

With respect, we believe that the Salgado court, in seeking to do justice, nonetheless ignored that part of the definition of audita querela which requires the showing of "some matter of defense or discharge," i.e., a legal defect in the conviction, arising since the conviction. In so doing, that court also added the equitable consideration of whether "a refusal to grant such relief would strip him of access to newly created rights which he would otherwise clearly be entitled to by operation of law." Id. at 1269. It found a newly created right in the amnesty provisions of the Immigration Reform and Control Act of 1986 (IRCA), codified at 8 U.S.C. Sec. 1255a, which adjusted the status of certain entrants to the United States. Id. at 1270. The Salgado case was the first, it appears, in which a criminal conviction was vacated pursuant to a writ of audita querela.

Based on Salgado, the district court in Ghebreziabher granted an application for a writ of audita querela and vacated one of three misdemeanor convictions for food stamp trafficking, which then allowed the defendant to become eligible for the amnesty program implemented by IRCA. United States v. Ghebreziabher, 701 F.Supp. at 116-17; see 8 U.S.C. Sec. 1255a(a)(4) (barring eligibility if convicted of three or more misdemeanors). The Ghebreziabher court determined that relief was warranted in the "interests of justice" and that conviction on two counts with the same sentence would "not in any way prejudice the United States." Id. at 117.

We have found three additional cases, aside from the present one, addressing the writ of audita querela. In United States v. Grajeda-Perez, 727 F.Supp. 1374 (E.D.Wash.1989), the petitioner sought a writ of audita querela to vacate a conviction for being an alien in possession of a firearm, in order to obtain legalization under IRCA. The district court in Grajeda-Perez concluded that the writ of audita querela was inappropriate because, whereas audita querela traditionally has been used only to obtain relief from the consequences of a judgment, the remedy sought in Grajeda-Perez was vacation of the judgment itself. Id. at 1375. Nonetheless, the court in Grajeda-Perez vacated the conviction, finding such a remedy warranted and available pursuant to the All Writs Act, 28 U.S.C. Sec. 1651(a). Id.

In United States v. Acholonu, 717 F.Supp. 709 (D.Nev.1989), the petitioner sought audita querela to vacate a conviction of mail fraud, in order to be eligible for the amnesty provisions of IRCA. The district court determined that IRCA constituted neither a discharge to petitioner's conviction because IRCA specifically disqualified a convicted felon from the amnesty program nor was it a defense to petitioner's conviction because the IRCA amnesty provision is...