USA. v. Pacheco

• Decision Date: 04 December 2000
• Docket Number: D,No. 00-30006,VALDEZ-PACHEC,00-30006
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ADOLFefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1077

237 F.3d 1077 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL ADOLF VALDEZ-PACHECO, Defendant-Appellant.

No. 00-30006

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted December 4, 2000¹

Filed January 23, 2001

Miguel Adolf Valdez-Pacheco, pro se, Lompoc, California, for the defendant-appellant.

Frank Noonan, Assistant United States Attorney, Portland, Oregon, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon James M. Burns, District Judge, Presiding. D.C. No.CR-88-00024-JMB

Before: Stephen S. Trott, Susan P. Graber and M. Margaret McKeown, Circuit Judges.

PER CURIAM:

Miguel Adolf Valdez-Pacheco ("Valdez") appeals pro se the district court's denial of his petition for a writ of audita querela, challenging his conviction and sentence resulting from his jury trial conviction in 1989 for various controlled substance offenses. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm.

I. FACTS AND PROCEDURAL HISTORY

In 1989, Valdez was convicted after a jury trial on eight drug-trafficking counts, including engaging in a continuing criminal enterprise, in violation of 21 U.S.C. 848, conspiracy to possess cocaine with the intent to distribute it, in violation of 21 U.S.C. 846, and possession of cocaine and heroin with the intent to distribute them, in violation of 21 U.S.C. 841. He was sentenced to 360 months' imprisonment. On direct appeal, we affirmed his convictions and sentence except as to the conspiracy count, and remanded to the district court with directions to enter an order staying the entry of judgment and imposition of sentence on that count. United States v. Valdez-Pacheco, No. 89-30209, 1991 WL 94363 (9th Cir. June 3, 1991) (unpublished memorandum disposition).

Valdez filed his first motion to vacate or correct his sentence under 28 U.S.C. 2255 on September 14, 1993. In that motion, Valdez raised claims of ineffective assistance of counsel, violations of due process, and insufficient evidence. The district court denied the motion, and we affirmed. United States v. Valdez-Pacheco, No. 95-35997, 1998 WL 23209 (9th Cir. Jan. 21, 1998) (unpublished memorandum disposition).

Valdez filed a second 2255 motion on February 6, 1995, which the district court denied on July 18, 1996. He next filed two motions to correct an illegal sentence under Federal Rule of Criminal Procedure 35, one on February 14, 1997, and one on March 7, 1997. The district court denied both motions on August 1, 1997. Valdez then filed a motion to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(2) on September 23, 1998, which the district court denied on September 21, 1999. No appeals were taken in any of those matters.

On October 18, 1999, Valdez filed a petition in the district court that he styled as a petition for a writ of audita querela under 28 U.S.C. 1651, the so-called "All Writs Act." Valdez for the first time challenged the district court's jurisdiction to impose an enhanced sentence, based on the government's alleged failure to file the requisite information denoting the prior convictions upon which the enhanced sentence was based. See 21 U.S.C. 851(a)(1).² He also renewed his sufficiency of the evidence challenge to the drug possession convictions and his double jeopardy challenge to the conspiracy conviction, both of which were addressed in his direct appeal.

On November 16, 1999, the district court, without ordering a response from the government, denied the petition because Valdez had failed to "allege circumstances arising after the judgment that would amount to a defense or discharge of the case against him." After the district court found excusable neglect, we deemed Valdez's notice of appeal timely.

II. DISCUSSION

Valdez contends on appeal that the district court erred by dismissing his petition because the writ of audita querela is available to remedy his alleged harms. The government contends that the district court properly dismissed the petition because a federal prisoner cannot challenge a conviction or sentence by way of a petition for a writ of audita querela if the prisoner's claims could be raised in a motion pursuant to 2255. We agree with the government.

We review de novo the question whether a federal prisoner challenging a conviction and sentence may properly file a petition for a writ of audita querela under the All Writs Act. See United States v. Ripinsky, 20 F.3d 359, 361 (9th Cir. 1994) ("The interpretation of a statute is a question of law reviewed de novo.").

At common law, the writ of audita querela permitted a judgment debtor to obtain equitable relief from a legal judgment because of some defense or discharge arising after the entry of the judgment. 7 Am. Jur. 2d Audita Querela 1 (1997). Audita querela has been expressly abolished in civil cases by the Rules of Civil Procedure. See Fed. R. Civ. P. 60(b). The writ, or a modern equivalent, at least potentially survives in the federal criminal context, however, under the Supreme Court's decision in United States v. Morgan, 346 U.S. 502 (1954) and the All Writs Act. See Doe v. INS, 120 F.3d 200, 203 (9th Cir. 1997); 28 U.S.C. 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.").

In Morgan, the Court decided that Rule 60(b) did not abolish a federal prisoner's right to petition for the related common law writ of coram nob is because such a petition is part of the original criminal case, not a separate civil proceeding. Morgan, 346 U.S. at 505-06 n.4. The Court further concluded that 2255 did not encompass the entire field of postconviction relief and that, in the proper circumstances, coram nob is remained available to invalidate a defective federal criminal conviction. Id. at 511.

We have stated subsequently that Morgan stands for the proposition that the common law writs, such as coram nobis and audita querela, are available to " `fill the interstices of the federal post conviction remedial framework.' " Doe, 120 F.3d at 203 (quoting United States v. Ayala, 894 F.2d 425, 428 (D.C. Cir. 1990)). In other words, the common law writs survive only to the extent that they fill "gaps" in the current systems of post conviction relief.

Other circuits have concluded that audita querela is not available to challenge a conviction or sentence when the prisoner's contentions could otherwise be raised in a motion pursuant to 2255. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993) (stating that "the writ is not available where, as here, the defendant may seek redress under 2255"); Ayala, 894 F.2d at 430 (concluding that, because the appellant's claims were "clearly cognizable in a section 2255 proceeding[,]" his "only proper remedy [was] a motion under section 2255"); United States v. Kimberlin , 675 F.2d 866, 869 (7th Cir. 1982) (stating that, although the appropriateness of audita querela as a remedy in criminal cases is questionable, "what is plain is that it cannot lie simply to enable a defendant to file a section 2255 motion without complying with the rules governing such motions"). We agree with our sister circuits and conclude that a federal prisoner may not challenge a conviction or sentence by way of a petition for a writ of audita querela when that challenge is cognizable underS 2255 because, in such a case, there is no "gap" to fill in the post conviction remedies.

Moreover, we reject Valdez's contention that audita querela is available in his case due to the fact that he is precluded from raising his claims in a 2255 motion by those provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, tit. I, 105, 110 Stat. 1214, 1220 (AEDPA) (codified in relevant part...