FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30217
Plaintiff-Appellee,
v. D.C. No.
3:93-cr-2090-FDB
VINCENT GAMBOA,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Argued and Submitted
February 1, 2010—Seattle, Washington
Filed June 11, 2010
Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcón
8683
8684 UNITED STATES v. GAMBOA
COUNSEL
Jon R. Zulauf, Zulauf & Chambliss, Seattle, Washington, for
the defendant-appellant.
UNITED STATES v. GAMBOA 8685
Michael S. Morgan, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
ALARCÓN, Circuit Judge:
Vincent Gamboa appeals from the denial of his petition for
a writ of audita querela. He contends that the district court
erred in determining that a writ of audita querela was unavail-
able to him to challenge his sentence. We affirm because we
conclude that the district court did not err in determining that
it lacked the authority to consider the merits of his petition for
a writ of audita querela because the writ presented a claim
regarding the legality of his sentence that is cognizable under
28 U.S.C. § 2255. We affirm because we conclude that under
the law of this Circuit, a federal prisoner may not challenge
his or her sentence pursuant to a petition for a writ of audita
querela if the requested relief can be obtained under § 2255.
I
Gamboa was convicted on April 14, 1993 by a jury for dis-
tributing and conspiring to distribute cocaine base. He was
sentenced on August 11, 1993 to 360 months imprisonment
followed by 10 years of supervised release.
On September 16, 1993, Gamboa filed a direct appeal from
the judgment and sentence. In his appeal, Gamboa claimed
that the statutes and applicable sentencing guideline, U.S.S.G.
§ 2D1.1, violated equal protection. He also argued that “his
sentence was improperly enhanced by governmental miscon-
duct, and he was denied effective assistance of counsel.” We
rejected each of Gamboa’s contentions. United States v. Gam-
boa, No. 93-30347, 1995 WL 527926, at *1-*2 (9th Cir. Sept.
7, 1995).
8686 UNITED STATES v. GAMBOA
On November 29, 1995, Gamboa filed a motion pursuant
to 18 U.S.C. § 3582(c)(2) for a reduction of his sentence. The
district court construed it as a motion under 28 U.S.C. § 2255
and denied it. Gamboa filed a motion for clarification on
December 18, 1995. The district court denied Gamboa’s
motion for clarification.
Gamboa appealed from the denial of his motion to this
Court. He contended “that the district court erred by constru-
ing his [§ ] 3582 motion as a motion under 28 U.S.C. § 2255.”
United States v. Gamboa, No. 96-35757, 1997 WL 345665
(9th Cir. June 23, 1997). We agreed with Gamboa and
remanded with instructions that the judgment be amended to
deny relief under 18 U.S.C. § 3582. Id.
On September 12, 1997, Gamboa filed a motion pursuant
to § 2255 in the district court. He argued that his conviction
must be set aside due to an improper jury instruction and the
ineffective assistance of counsel. The district court denied
Gamboa’s motion as untimely under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”).1 The district court
also denied a motion for reconsideration, as well as a request
for a certificate of appealability. Gamboa’s request for a cer-
tificate of appealability from this Court was also denied.
Gamboa sought leave of this Court to file a successive § 2255
motion on April 16, 1998. He later withdrew his request.
Accordingly, we dismissed Gamboa’s request without preju-
dice.
On September 29, 1998, Gamboa filed a petition for a writ
of mandamus in this Court. We denied the petition. The
Supreme Court denied Gamboa’s petition for certiorari. Gam-
boa v. U.S. Dist. Court for the W. Dist. of Wash., 526 U.S.
1044 (1999).
1
“AEDPA’s one-year grace period for challenging convictions finalized
before AEDPA’s enactment date is governed by [Fed. R. Civ. P.] Rule
6(a) and ended on April 24, 1997 in the absence of statutory tolling.” Pat-
terson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
UNITED STATES v. GAMBOA 8687
On September 5, 2001, Gamboa filed a § 2255 motion in
this Court. On January 10, 2002, we denied Gamboa’s motion
on the ground that an initial § 2255 motion must be filed in
the district court that imposed the sentence. On October 29,
2002, Gamboa requested leave of the district court to file a
§ 2255 motion. On November 13, 2002, the district court
denied Gamboa’s request as untimely.
On July 11, 2005, Gamboa filed another § 2255 motion in
the District Court for the Western District of Washington. The
district court denied his motion as untimely on January 13,
2006. Gamboa sought reconsideration of the district court’s
denial of his § 2255 motion. The district court denied Gam-
boa’s motion for reconsideration and refused to issue a certifi-
cate of appealability. On December 1, 2006, we denied
Gamboa’s request for a certificate of appealability because he
failed to file a timely notice of appeal.
On October 26, 2007, Gamboa filed a motion in the district
court pursuant to Fed. R. Civ. P. 60(b)(6). The district court
denied the motion because Gamboa failed to demonstrate
extraordinary circumstances that excused the untimely filing
of his motion. Gamboa v. United States, Nos. C95-5678 (JET)
FDB, CR93-2090 (JET) FDB, 2007 WL 3308118 (W.D.
Wash. Nov. 6, 2007).
On March 10, 2008, Gamboa filed a motion to recall the
mandate issued by this Court following the direct appeal. On
April 28, 2008, this Court denied Gamboa’s motion. In so
doing, we stated that “[n]o motions for reconsideration,
rehearing, or stay of the mandate shall be filed or entertained
in this court in this closed docket.” United States v. Gamboa,
No. 93-30347 (9th Cir. Apr. 28, 2008) (order denying appel-
lant’s motion to recall the mandate).
On April 23, 2009, Gamboa filed a petition for a writ of
audita querela pursuant to the All Writs Act, 28 U.S.C.
§ 1651, in the district court seeking to vacate his sentence in
8688 UNITED STATES v. GAMBOA
light of the Supreme Court’s decision in United States v.
Booker, 543 U.S. 220 (2005). The district court denied Gam-
boa’s petition on the ground that his “argument present[ed] a
claim cognizable under 28 U.S.C. § 2255, and is thus not
appropriate for a writ audita querela.” Gamboa v. United
States, No. CR93-2090 (JET) FDB, 2009 WL 1175315 (W.D.
Wash. Apr. 29, 2009).
Gamboa filed a timely notice of appeal. We have jurisdic-
tion over this appeal pursuant to 28 U.S.C. § 1291.
II
Gamboa contends that a district court has the power to
issue a writ of audita querela upon a showing of extraordi-
nary circumstances. He maintains that he is entitled to a new
sentencing hearing because he was sentenced on August 11,
1993 to serve 360 months only because the trial judge was
required to do so under the mandatory sentencing provisions
of the United States Sentencing Guidelines. Gamboa argues
that because the mandatory provisions of the Sentencing
Guidelines were not held to be unconstitutional until 2005 in
Booker, twelve years after he was sentenced, he was pre-
cluded from arguing before the trial court that a sentence of
360 months was too severe and extraordinarily harsh. Gam-
boa also asserts that he could not comply with the requirement
that a petition for a writ of habeas corpus be filed within one
year of the date his 1993 sentencing became final because “at
that time the law was fixed by Supreme Court precedent that
upheld the mandatory guidelines.” (Appellant’s Br. at 11.) He
argues that his inability to comply with this timeline require-
ment constitutes extraordinary circumstances that enable him
to relief pursuant to a writ of audita querela.
We review de novo a district court’s order to grant or deny
a petition for a writ of audita querela. United States v.
Hovsepian, 359 F.3d 1144, 1153 (9th Cir. 2004).
UNITED STATES v. GAMBOA 8689
III
The only authority cited by Gamboa in support of his con-
tention that a district court may grant a writ of audita querela
under these circumstances is Kessack v. United States, No.
C05-1828Z, 2008 WL 189679 (W.D. Wash. Jan 18, 2008), an
unpublished decision of a different district court judge of the
United States District Court for the Western District of Wash-
ington. In Kessack, the district court held that it had the
authority to issue a writ of audita querela because the peti-
tioner “was precluded from raising ‘Booker issues’ at the time
of sentencing, at the time of his direct appeal, and at the time
he filed his [§ ] 2255 motion, by United States Supreme Court
decisions that precluded challenges to the validity of the Fed-
eral Sentencing Guidelines.” Id. at *3.
[1] Gamboa’s reliance on Kessack is misplaced. It is con-
trary to the law of this Circuit. In Carrington v. United States,
503 F.3d 888, 889 (9th Cir. 2007), we rejected a prisoner’s
claim that he was entitled to resentencing because he had been
sentenced prior to Booker under the existing mandatory provi-
sions of the Sentencing Guidelines. We reasoned as follows:
Petitioners argue that there is a gap in post-
conviction relief. They contend that the numerical
limits on filing habeas petitions preclude them from
raising a claim based on Booker through a § 2255
habeas petition. See 28 U.S.C. §§ 2255, 2244(b)(3).
We have previously held, however, that the statutory
limits on second or successive habeas petitions do
not create a ‘gap’ in the post-conviction landscape
that can be filled with the common law writs. See
[United States v.] Valdez-Pacheco, 237 F.3d [1077,]
1080 [(9th Cir. 2001)]. Moreover, even if petitioners
had been granted permission to file second or suc-
cessive habeas petitions under 28 U.S.C.
§ 2244(b)(3), we have held that Booker does not
apply to cases on collateral review. See United States
8690 UNITED STATES v. GAMBOA
v. Cruz, 423 F.3d 1119, 1121 (9th Cir. 2005) (per
curiam). Therefore, petitioners are not entitled to
relief on collateral review, however it is labeled.
Id. at 890. Accordingly, we conclude that the district court did
not err in denying Gamboa’s petition for a writ of audita
querela.
AFFIRMED.