F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
May 1, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
DAVID OWEN
VANLITSENBORGH,
Petitioner-Appellant, No. 05-8114
(D.C. No. 05-CV-245-CAB)
v. (D. Wyo.)
UNITED STATES OF AMERICA,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, McCONNELL, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the
briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument.
The defendant appeals the district court’s denial of his petition for a
*
This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. The
court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
writ of error audita querela which challenged the legality of his sentence
imposed following his conviction of drug and firearms offenses. We vacate
the order for lack of subject matter jurisdiction, construe the notice of
appeal and appellate brief as an implied application for leave to file a
successive 28 U.S.C. § 2255 motion, and deny authorization.
The defendant’s original § 2255 motion was denied by the district
court. Subsequently, the defendant filed the petition which is the subject of
this appeal, contending that his sentence is illegal under United States v.
Booker, 543 U.S. 220 (2005). The district court denied the motion,
concluding that § 2255 is neither inadequate nor unavailable, that § 2255
remained the exclusive means by which the defendant could raise such a
challenge, and that Booker is not retroactive.
The defendant’s petition constituted a § 2255 motion under the
Antiterrorism and Effective Death Penalty Act. See United States v.
Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) (“[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 .... [T]o allow a petitioner to avoid
the bar against successive § 2255 petitions by simply styling a petition
under a different name would severely erode the procedural restraints
imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”) (internal quotations
and citations omitted). Accordingly, the district court lacked jurisdiction
over the motion, and the district court order must be vacated. See Lopez v.
Douglas, 141 F.3d 974, 975-76 (10th Cir. 1998).
However, we will construe the defendant’s notice of appeal and
appellate brief as a request for the required authorization. Id.
We have thoroughly reviewed the matter and conclude that the
defendant has failed to make the prima facie showing required by § 2255 as
amended by the Antiterrorism and Effective Death Penalty Act. His
contentions are not based on newly discovered evidence that, “if proven
and viewed in light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable fact finder
would have found [him] guilty of the offense” or on a “new rule of
constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255.
Booker has not been made retroactive to cases on collateral review as
required by § 2255 ¶ 8. See Bey v. United States, 399 F.3d 1266, 1269 (10th
Cir. 2005) (“Pursuant to the Supreme Court’s holding in [Tyler v. Cain, 533
U.S. 656 (2001)] we must conclude that under the Antiterrorism and
Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, Booker may not be applied retroactively to second or successive
habeas petitions.”). Nor do the other claims raised by the defendant meet
the gatekeeping requirements.
The motion to proceed in forma pauperis is granted, the district court
order is VACATED, and the implied application for authorization to file a
second § 2255 petition is DENIED.
ENTERED FOR THE COURT
PER CURIAM