U.S. v. Torres

Decision Date21 February 2002
Docket NumberNo. 01-6327.,01-6327.
PartiesUNITED STATES of America, Respondent-Appellee, v. Raymond TORRES, Petitioner-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Raymond Torres, pro se.

Before EBEL, KELLY and LUCERO, Circuit Judges.

EBEL, Circuit Judge.

Petitioner-Appellant Raymond Torres is currently imprisoned in a federal prison in New Mexico for offenses related to a conspiracy to distribute methamphetamine. Torres, appearing pro se, challenges procedural and substantive rulings the United States District Court for the Western District of Oklahoma made concerning his "petition for writ of error coram nobis and/or petition for writ of audita querela."

In the petition, which he filed on January 16, 2001, Torres alleged that his sentence and conviction were unconstitutional in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). On January 22, 2001, the district court entered an order explaining that because Torres was currently in federal custody for his methamphetamine convictions, he could not challenge those convictions and their corresponding sentences through a writ of coram nobis.1 (Jan. 22 Order at 1-2.) The proper method for raising such a challenge, the court pointed out, would be to file a petition under 28 U.S.C. § 2255. (Id. at 2.) The district court observed, however, that recharacterizations of pro se petitions brought under the All Writs Act, 28 U.S.C. § 1691, as § 2255 petitions are often disfavored. (Id. at 2.) Moreover, the district court noted that if it were to restyle Torres's petition as one seeking relief under § 2255, then it would lose subject matter jurisdiction over the petition because Torres had previously filed a § 2255 petition and had not sought permission from this court to file a successive § 2255 petition. See 28 U.S.C. § § 2255, 2244(b)(1).

Having laid out this analytic framework, the district court reasoned that it could dispose of Torres's petition in either one of two ways:

[T]he Court can either treat [Torres's] petition as a petition for a writ of error coram nobis or for a writ of audita querela, in which case his petition must be dismissed for lack of subject matter jurisdiction, or the Court can recharacterize the petition as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, in which event the Court will transfer the motion to the United States Court of Appeals for the Tenth Circuit pursuant to 28 U.S.C. § 1631 [for authorization to file a second § 2255 petition].

(Id. at 2-3.) The court then invited Torres to specify within ten days "whether or not he agrees to recharacterization of his petition(s) as a motion filed pursuant to 28 U.S.C. § 2255."2 (Id. at 3.)

As best we can discern, the next correspondence between Torres and the district court occurred on April 9, 2001, when Torres filed a motion to supplement his "coram nobis and/or audita querela" petition. The district court, in a one paragraph order, denied Torres's motion on April 12, 2001, "as moot inasmuch as the Court denied Defendant's petition for these writs by Order entered January 22, 2001." (April 12 Order.) A little over two months later, Torres nonetheless submitted his supplemental petition to the district court; the court subsequently struck that petition on June 15, 2001.

On July 30, 2001, Torres filed a motion pursuant to Rule 4(a)(6) of the Federal Rules of Appellate Procedure requesting that the district court "reopen the time to appeal" the January 22 and April 12 orders. In the documents accompanying his motion, Torres alleged that he did not receive the court's January 22 order until July 24, 2001, and that he received it then only because his sister had contacted the clerk of the court and inquired about the status of the "coram nobis and/or audita querela" petition. On August 17, 2001, the district court rejected Torres's request to reopen the time to appeal, holding that Torres had failed to file his motion to reopen within the 180 day period required under Rule 4(a)(6). (Aug. 17 Order at 2.) Torres then appealed to this court.

In his appeal, Torres raises three issues. First, he contends that the district court abused its discretion under Rule 4(a)(6) by denying his motion to reopen the time for appeal. (Aplt. Br. at 7-8.) Second, and closely related to his first argument, Torres alleges that his appeal should be considered timely because the district court violated Rule 58 of the Federal Rules of Civil Procedure by not entering a separate judgment denying his "coram nobis and/or audita querela" petition. Third, he argues that the district court erred in reclassifying the "coram nobis and/or audita querela" petition as a § 2255 petition.

We need not reach Torres's Rule 4(a)(6) argument because we agree that the district court never entered a proper judgement under Rule 58, which provides that a "judgment is effective only when" "set forth on a separate document."3 Fed R.Civ.P. 58. In Clough v. Rush, 959 F.2d 182 (10th Cir.1992), we held that Rule 58's separate document requirement "applies in any case where there is uncertainty about whether final judgment has been entered." Id. at 185 (citing United States v. Clearfield State Bank, 497 F.2d 356, 358 (10th Cir.1974). We further noted that a separate judgment might not have to be entered if an "order[ ] contain[s] neither a discussion of the court's reasoning nor any dispositive legal analysis," but suggested that longer, more detailed orders containing legal analysis could not "meet Rule 58's requirements." Clough, 959 F.2d at 185.

In the present case, it is clear that the district court's January 22 order could not act as a "judgment" for Rule 58 purposes, for it left "some uncertainty about whether final judgment ha[d] entered." Id. at 185. As our discussion above demonstrates, the district court's January 22 order never identified the final disposition of Torres's petition. Indeed, the order explicitly left open the possibility that Torres's "coram nobis and/or audita querela" petition might be disposed of on the merits, or, alternatively, recharacterized as a § 2255 petition and transferred to this court under 28 U.S.C. § 1631.4 Cf. In re Durability, Inc., 893 F.2d 264, 265 (10th Cir.1990) ("[A]n order is final if it ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."). The uncertainty of the district court's disposition is all the more clear given that the district court instructed Torres to explain within ten days whether he wished to have his claims treated as a § 2255 petition.5 (January 22 Order at 23.)

Torres may, however, waive the Rule 58 violation and ask this court to consider his appeal timely, Clough, 959 F.2d at 185-86, and in his brief he indicates that he would like to do so. (Aplt. Br. at 9.) The absence of an appropriate Rule 58 judgment does not deprive this court of jurisdiction or require a remand. See Clough, 959 F.2d at 185 ("The Supreme Court has instructed that ... the absence of a separate document should not be used to defeat consideration of the merits."). Principles of judicial economy and efficiency, courts have explained, would be undercut if we simply remanded cases for compliance with Rule 58 and entry of a separate judgment document where the appellant waives the Rule 58 violation. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 385-86, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978); Marshall v. Shalala, 5 F.3d 453, 454 n. 4 (10th Cir.1993). Consequently, we will consider Torres's appeal timely and proceeded to the substance of his appeal. Clough, 959 F.2d at 186.

The heart of Torres's argument is that the district court violated his "due process rights" and "abused its discretion" by recasting his petition for "writ of coram nobis and/or writ audita querela" as a § 2255 petition. (Aplt. Br. at 10.) If we were to review his petition under the legal standards for coram nobis and audita querela, he alleges, we would conclude that his sentence and conviction are unconstitutional in the wake of the Supreme Court's Apprendi decision. At its core, Torres's argument centers around the alleged failure of the government to prove beyond a reasonable doubt that he possessed "D-methamphetamine." (Aplt. Br. at 11.) We find Torres's claims unpersuasive for two reasons.

First, assuming for the sake of argument that the district court mistakenly reclassified his petition, Torres cannot obtain the relief he desires through coram nobis or audita querela writs.6 As courts have explained, a prisoner may not challenge a sentence or conviction for which he is currently in custody through a writ of coram nobis. See, e.g., United States v. Carpenter, 24 Fed.Appx. 899, 903 (10th Cir.2001) (unpublished) (citing United States v. Johnson, 237 F.3d 751, 755 (6th Cir.2001)). Similarly, a writ of audita querela is "not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255." Tavares v. Mass., 59 F.Supp.2d 152, 155 (D.Mass.1999); see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2000) ("We agree with our sister circuits that a federal prisoner may not challenge a conviction or a sentence by way of a petition for a writ of audita querela when that challenge is cognizable under § 2255..."); United States v. Johnson, 962 F.2d 579, 582 (7th Cir.1992) (explaining that audita querela may "not be invoked by a defendant challenging the legality of his sentence who could otherwise raise that challenge under 28 U.S.C. § 2255").

Alternatively, we do not believe that the district court acted incorrectly by recharacterizing Torres's motion as a § 2255 petition, assuming, as Torres claims, this is what the district court did. In recent years, we have explained that district courts should not sua sponte recharacterize a prisoner's petition for post-conviction relief as...

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