U.S. v. Johnson

• Decision Date: 24 April 1992
• Docket Number: No. 91-3369,91-3369
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manapurath Eappen JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 579

962 F.2d 579

UNITED STATES of America, Plaintiff-Appellee, v. Manapurath Eappen JOHNSON, Defendant-Appellant.

No. 91-3369.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 17, 1991.

Decided April 24, 1992.

James G. Hoofnagle, Jr., Asst. U.S. Atty., John L. Sullivan, Crim. Div., Jerome N. Krulewitch, Asst. U.S. Atty. (argued), Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

James W. Reilley, Dianne Ruthman, Reilley & Associates, Des Plaines, Ill., Nathan T. Notkin (argued), Chicago, Ill., for defendant-appellant.

Before POSNER, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

On August 16, 1991, defendant Manapurath Eappen Johnson filed a "Petition for Writ of Audita Querela, Writ of Coram Nobis, or a Writ under the All-Writs Act" ("petition"), requesting that his 1983 criminal conviction be vacated. The district court denied the petition. 773 F.Supp. 114. Johnson now appeals that denial, asking this Court to remand the case to the district court with instructions to review the equities as a basis for the issuance of a writ of audita querela. ¹ We decline to do so because a writ of audita querela may not be issued on purely equitable grounds.

Johnson, a 50-year-old native and citizen of India, was admitted to the United States as a permanent resident in 1976. Johnson pled guilty in 1983 to conspiracy to distribute and distribution of a controlled substance--approximately 13 pounds of opium--in violation of 21 U.S.C. §§ 841(a)(1) and 846. He was sentenced to two years imprisonment, with execution of that sentence suspended during a five-year probationary period which included a condition that Johnson reside and participate in the work release program at the Metropolitan Correctional Center for a period of four months. The district court also imposed a special parole term of seven years. Johnson has since completed the sentence.

In October 1983, the Immigration and Naturalization Service ("INS") initiated deportation proceedings. Johnson conceded deportability, and filed a petition for discretionary relief from deportation pursuant to § 212(c) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101, 1182 ("Act"). At a hearing in May 1984, the immigration judge determined that Johnson's case did not warrant a favorable exercise of discretion after weighing the equities against the serious nature of the misconduct. The Board of Immigration Appeals ("Board") affirmed in July 1989, noting that the immigration judge's decision was fully supported by the record and that all the evidence presented was considered before denying relief. We affirmed the Board in an unpublished order, 907 F.2d 153 (7th Cir.1990). Johnson then filed a motion to reopen deportation proceedings which the Board denied. Our review of that denial is the subject of a separate opinion. See Johnson v. INS, 962 F.2d 574 (7th Cir.1992).

Continuing his campaign to avoid deportation, Johnson then filed a Petition for Writ of Audita Querela, asking the district court to vacate his 1983 criminal conviction on purely equitable grounds. ² Referring to Johnson as a productive member of society, the petition recited the equities in Johnson's favor: the ownership and operation of a travel agency since 1979, the ownership of a retirement home in Florida, the citizenship of his wife, the permanent residency of his two sons, and the successful completion of his sentence. These equities, Johnson argued, required that the writ be issued to avoid the injustice of certain deportation. While expressing sympathy for Johnson's personal circumstances, the district court held that issuance of the writ depended solely on the existence of a legal defect in the underlying criminal conviction--or a defect in the sentence that would taint the conviction--and denied Johnson's petition.

The issues before us--issuance of a writ of audita querela on purely equitable grounds independent of a legal defect in the underlying conviction or sentence and availability of audita querela in criminal proceedings--involve solely questions of law and, as such, are reviewed de novo. Oneida Tribe of Indians v. Wisconsin, 951 F.2d 757, 760 (7th Cir.1991).

Johnson claims that district court judges should be allowed, on a case-by-case basis, to grant relief through a writ of audita querela from the consequences of a conviction where those consequences are grossly inequitable. Arguing that audita querela is a necessary postconviction remedy, Johnson relies primarily on two district court decisions awarding audita querela relief on solely equitable grounds. In United States v. Salgado, 692 F.Supp. 1265, 1269-70 (E.D.Wash.1988), the court utilized audita querela to vacate an alien's 24-year-old tax evasion conviction so that the alien could take advantage of amnesty rights granted under the Immigration Reform and Control Act of 1988. 8 U.S.C. § 1255(a). The district court in United States v. Ghebreziabher, 701 F.Supp. 115, 116-17 (E.D.La.1988), employed audita querela to vacate one of three food stamp convictions so that an alien would be eligible for amnesty rights. Johnson argues that harsh consequences often attend immigration disputes, thereby necessitating the creation of a equitable remedy to correct gross unfairness. Johnson's counsel freely conceded at oral argument that there existed no legal defect in Johnson's 1983 conviction or sentence.

The government's response--that Johnson is indeed attempting to create a new postconviction remedy not founded on legal principles--draws support from the consensus of the circuits that audita querela, if available at all in criminal proceedings, can be used only to correct legal defects in an underlying criminal conviction or sentence arising subsequent to a conviction. ³ See United States v. Reyes, 945 F.2d 862, 866 (5th Cir.1991); United States v. Holder, 936 F.2d 1, 3 (1st Cir.1991); and United States v. Ayala, 894 F.2d 425, 426 (D.C.Cir.1990). Under the government's line of reasoning, Johnson is foreclosed from relief by writ of audita querela without the requisite showing of legal defect.

Audita querela is an old common-law writ permitting a defendant to obtain "relief against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment." 11 CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2867, at 235 (1973). Reyes, Holder, and Ayala, also immigration-based cases, specifically rejected the analysis of the Ghebreziabher and Salgado courts and required the post-judgment defense or discharge to be a legal defect, not an objection based solely on equitable grounds. Reyes, 945 F.2d at 866; Holder, 936 F.2d at 3; and Ayala, 894 F.2d at 429. We agree.

In our only relatively recent brush with audita querela, we held that the writ could not be invoked by a defendant challenging the legality of his sentence who could otherwise raise that challenge under 28 U.S.C. § 2255. United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir.1982). In defining audita querela, we noted that the procedure is used to obtain relief from a judgment. Id. The Salgado court focused on that portion of the definition and used it as justification to award relief solely on equitable grounds, ignoring the subsequent defense or discharge requirement. 692 F.Supp. at 1269. As the government points out, a claim that a criminal conviction is inequitable or unfair, or even grossly unfair, does not constitute a defense to, or discharge from, that conviction. Audita querela is not a wand which may be waved over an otherwise valid criminal conviction, causing its disappearance; rather, it 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.

Creation of a new equitable remedy in the federal post-conviction relief scheme raises serious constitutional concerns. See Reyes, 945 F.2d at 866; Holder, 936 F.2d at 5. We have a delicately balanced system--one that depends on a separation of powers. In this instance, Congress is vested with the power to enact immigration legislation, including deportation standards. The executive is empowered to prosecute criminal offenses. Vacating a valid conviction through the purely equitable use of audita querela amounts to an end run around properly enacted immigration legislation and essentially rewrites § 241(a)...