CLD-211 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-1843
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UNITED STATES OF AMERICA
v.
JULIO OTERO,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Crim. No. 96-cr-00005)
District Judge: Honorable Sylvia Rambo
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Submitted for Possible Summary Action Pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6
June 4, 2010
Before: BARRY, FISHER and GREENAWAY, Circuit Judges.
(Filed: June 25, 2010)
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OPINION
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PER CURIAM
Julio Otero, a federal prisoner proceeding pro se, appeals an order of the United
States District Court for the Middle District of Pennsylvania denying his petition for a
writ of audita querela. We will affirm.
Otero pleaded guilty to engaging in a continuing criminal enterprise in violation of
21 U.S.C. § 848. He received a life sentence. Otero did not appeal the judgment of
conviction and sentence, which was entered in 1998. In 2001, more than three years after
the conviction became final, Otero filed a motion to vacate sentence pursuant to 28
U.S.C. § 2255, claiming, among other things, ineffective assistance of counsel. The
District Court held an evidentiary hearing but did not grant Otero’s request for counsel.
The District Court denied the motion to vacate sentence on the merits.
We reversed the District Court’s dismissal of Otero’s ineffective assistance
counsel claim because, if indigent, Otero was entitled to representation by counsel at his
evidentiary hearing. United States v. Bendolph, 409 F.3d 155, 160 (3d Cir. 2005) (en
banc). We further decided that the District Court could consider sua sponte on remand
whether Otero’s § 2255 motion was time-barred. On remand, the District Court
appointed Otero counsel and held a hearing to address the timeliness of his § 2255
motion. The District Court granted the Government’s motion to dismiss the § 2255
motion as untimely and, in 2007, we affirmed. See C.A. No. 05-5505.
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Earlier this year, Otero filed a petition for a writ of audita querela challenging his
conviction and sentence. Otero claimed that the District Court erroneously accepted his
guilty plea and determined his sentence. He also claimed that his counsel failed to object
to sentencing factors and file a direct appeal. Relying on our decision in Massey v.
United States, 581 F.3d 172 (3d Cir. 2009) (per curiam), the District Court denied the
petition. This appeal followed.
In Massey, a federal prisoner filed a petition for a writ of audita querela seeking to
challenge his sentence under United States v. Booker, 543 U.S. 220 (2005). We held that
the prisoner could not seek relief through a petition for a writ of audita querela because
his claim was cognizable under § 2255. Massey, 581 F.3d at 174. We explained that the
prisoner could not resort to a writ of audita querela based on his inability to satisfy the
requirements for filing a § 2255 motion under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Id. The same is true here. Otero’s claims are
cognizable under § 2255. Otero may not seek relief through a petition for a writ of audita
querela based on his inability to satisfy AEDPA’s gatekeeping requirements.
Because this appeal does not raise a substantial question, we will summarily affirm
the District Court’s order.
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