United States v. Jose Antonio Doyharzabal

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 20, 2009
No. 08-14527 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 87-00516-CR-WPD

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE ANTONIO DOYHARZABAL,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 20, 2009)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

Jose Antonio Doyharzabal appeals pro se the district court’s denial of his
motion for reconsideration of its order denying his petition for a writ of audita

querela.1 He contends that a writ of audita querela is the only remaining avenue by

which he can challenge the constitutionality of his sentence and seek retroactive

application of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).

We “review de novo the question of whether a prisoner may challenge his

sentence by filing a motion for a writ of audita querela.” United States v. Holt, 417

F.3d 1172, 1174 (11th Cir. 2005) (per curiam).

Audita querela is “an ancient writ used to attack the enforcement of a

judgment after it was rendered.” Id. Although we have noted that “federal courts

may properly fill the interstices of the federal postconviction remedial framework

through remedies available at common law,” id. at 1175 (quotation omitted), a writ

of audita querela may not be granted where the “relief [sought] is cognizable under

[28 U.S.C.] § 2255.” Id. Here the relief that Doyharzabal seeks—vacating his

sentence as unconstitutional—falls within the scope of § 2255.2 Therefore, he

1
Doyharzabal had previously filed an unsuccessful 28 U.S.C. § 2255 motion to vacate
his conviction, which the district court denied.
2
Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution . . . or that the sentence was in excess of the maximum authorized by
law . . . may move the court which imposed the sentence to vacate, set aside or correct
the sentence.

2
cannot seek relief from his sentence under a writ of audita querela. The district

court properly denied his motion.

AFFIRMED.

28 U.S.C. § 2255(a).