United States v. Stephen Lester Davis

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Oct. 29, 2009
No. 09-10728 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 98-00785-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEPHEN LESTER DAVIS,

Defendant-Appellant.

________________________

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

(October 29, 2009)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:

On February 9, 2000, we affirmed appellant’s convictions (following a
bench trial) for conspiracy to possess with intent to distribute cocaine and

possession of cocaine with intent to distribute. See 21 U.S.C. §§ 841(a)(1), 846.

United States v. Davis, 209 F.3d 724 (11th Cir. 2000) (unpublished). After

unsuccessfully moving the district court for relief from the court’s judgment

pursuant to 28 U.S.C. § 2255, the All Writs Act, 28 U.S.C. § 1651, and 18 U.S.C. §

3582(c)(2), appellant petitioned the court on December 11, 2001, for a writ of

audita querela, claiming that the court, in determining his offense level, erred in

enhancing his base offense level for being an organizer of a conspiracy and in

treating the Sentencing Guidelines as mandatory contrary to the Supreme Court’s

holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621

(2005). The court denied his petition. He now appeals.

Appellant contends that the writ of audita querela is available, pursuant to

the All Writs Act, to fill in the gaps in the system of post-conviction relief. He

argues that he improperly received a two-level enhancement of his offense level

for a leadership role in a criminal organization because the enhancement was

imposed in a mandatory guidelines system and the leadership role was not found

by a jury.

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

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

The writ of audita querela “was an ancient writ used to attack the

enforcement of a judgment after it was rendered.” Id. at 1174, quoting Black's Law

Dictionary 126 (7th ed. 1999). It was abolished in the civil context in 1946 by Fed.

R. Civ. P. 60(b). Under the All Writs Act, 28 U.S.C. § 1651, adopted in 1948, it

was restored in certain contexts, however. In United States v. Morgan, 346 U.S.

502, 510-511, 74 S.Ct. 247, 252, 98 L.Ed. 248 (1954), the Supreme Court noted

that at least one common law writ (coram noblis) could be pursued in the criminal

context. We held in Holt that “federal courts may properly fill the interstices of the

federal postconviction remedial framework through remedies available at common

law.” Holt, 417 F.3d at 1176.

In Holt, a federal prisoner filed a petition for a writ of audita querela in order

to collaterally attack his sentence on the theory that Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), was retroactive. Holt, 417 F.3d

at 1174. We held that “a writ of audita querela may not be granted when relief is

cognizable under § 2255.” Id. at 1175. This applied even where, as in that case,

the petitioner had already filed a § 2255 motion; it was denied, and thus the

prisoner could only seek postconviction relief by seeking leave to file a successive

petition. Id. We further construed his pro se filing as a § 2255 petition and held

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that, since he had already filed a § 2255 petition and had not sought this court’s

permission to file another, the district court had correctly denied it.

A prisoner in federal custody may challenge his incarceration in a second or

successive § 2255 motion if the court of appeals grants him leave to do so. 28

U.S.C. § 2244(b)(3)(A). An appeal of the district court’s denial of a successive

§ 2255 motion may not proceed unless a certificate of appealability (“COA”)

issues. We therefore construe appellants appeal as an application for a COA. Fed.

R. App. P. 22(b)(1).

The holding in Holt applies here. Appellant attacks his sentence collaterally,

has already filed a § 2255 motion, which was denied on the merits, and therefore

must seek permission to file a successive § 2255 motion. The writ of audita

querela does not apply because other postconviction relief is available. Because he

previously failed to obtain permission to file a successive petition from this court,

the district court’s denial was correct.

AFFIRMED.

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