Case: 11-10387 Document: 00511607363 Page: 1 Date Filed: 09/20/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 20, 2011
No. 11-10387
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
GEORGE WHITEHEAD, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-11-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Proceeding pro se and in forma pauperis, George Whitehead, Jr., federal
prisoner # 35653-177, appeals from the district court’s denial of his motion to
vacate his convictions for possession of a controlled substance with intent to
distribute and being a felon in possession of a firearm. Whitehead contends he
should have been granted a writ of audita querela pursuant to the All Writs Act,
28 U.S.C. § 1651, because he did not discover his claimed double-jeopardy
violation until after he had sought relief under 28 U.S.C. § 2255.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-10387 Document: 00511607363 Page: 2 Date Filed: 09/20/2011
No. 11-10387
The question whether a prisoner may challenge his sentence via a writ of
audita querela is reviewed de novo. E.g., Ctr. for Individual Freedom v.
Carmouche, 449 F.3d 655, 662 (5th Cir. 2006) (questions of law reviewed de
novo); United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005) (per curiam)
(“We review de novo the question of whether a prisoner may challenge his
sentence by filing a motion for a writ of audita querela.”). The writ is not
available if the objection can be brought pursuant to any other post-conviction
remedy. United States v. Miller, 599 F.3d 484, 488 (5th Cir. 2010). Thus, the
writ is not available when the prisoner may seek redress under § 2255. United
States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). Neither a prior unsuccessful
§ 2255 motion nor an inability to meet the requirements for pursuing a
successive § 2255 motion renders the § 2255 remedy unavailable. Tolliver v.
Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
AFFIRMED.
2