UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2350
In re: MARTY LORENZO WRIGHT,
Petitioner.
On Petition for Writ of Audita Querela. (4:95-cr-00039-TEM-
TEM-1)
Submitted: June 30, 2011 Decided: July 5, 2011
Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Marty Lorenzo Wright, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marty Lorenzo Wright has filed a petition for a writ
of audita querela in this court, pursuant to the All Writs Act,
28 U.S.C. § 1651(a) (2006), seeking to challenge the district
court’s prior dismissal of his Fed. R. Civ. P. 60(b) motion in
his underlying 28 U.S.C.A. § 2255 (West Supp. 2010) motion. A
writ of audita querela is not available to a petitioner when
other avenues of relief are available, such as a motion to
vacate under § 2255. United States v. Torres, 282 F.3d 1241,
1245 (10th Cir. 2002); 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 § 2255). The
fact that Wright cannot proceed under § 2255 unless he obtains
authorization from this court to file a successive motion does
not alter this conclusion. 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.”).
Accordingly, we deny Wright’s pending motion for an
evidentiary hearing and his petition for a writ of audita
querela. We dispense with oral argument because the facts and
2
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DENIED
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