IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 19, 2009
UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
JESUS ANDRADE, DEFENDANT/PETITIONER.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING WITHOUT PREJUDICE PETITIONER'S MOTION TO ORDER THE CLERK OF THE COURT TO PROVIDE DOCUMENTS
On May 14, 2009, Petitioner Jesus Andrade, proceeding in pro per, filed a "Motion Requesting the Court to Order the Clerk to Provide Movant with Requested Documents in Order to File a Successive Habeas Petition and Meet the Threshold Requirements Mandated by AEDPA." By this motion, Petitioner seeks production at Government expense of:
1. Complaint and Affidavit with Assessment and Proof of Claim;
2. Indictment and any superseding indictment(s) with Affidavit;
3. Arrest Warrant with Affidavit;
4. Search Warrant with Affidavit;
5. Seizure Warrant with Affidavit;
6. Transcripts of Grand Jury Proceedings;
7. Grand Jury Concurrancy Form;
8. Trial Transcripts;
9. Sentencing Transcripts;
10. Judgment and Commitment;
11. Direct Appeal and Decision Order;
12. 28 U.S.C. § 2255 proceedings;
13. Statement of Jurisdiction of this Court. Petitioner's motion is accompanied by his application to proceed in forma pauperis.
Petitioner pleaded guilty pursuant to a written Plea Agreement to conspiracy to possess pseudoephedrine knowing that the pseudoephedrine would be used to manufacture a controlled substance in violation of 21 U.S.C. §§ 841(c)(2) and 846. Petitioner was sentenced on December 6, 2004 to imprisonment for 135 months and a 36 month term of supervised release. Petitioner did not file an appeal from his conviction or sentence. The Court's docket reveals that no motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 has ever been filed by Petitioner in this Court.*fn1
Petitioner asserts that he "intends to move the court pursuant to 18 U.S.C. § 3582(c)(2) and United States Sentencing Guidelines § 1B1.10(c), and § 4A1.1 and 2, Seeking a Modification or Reduction of Sentence based upon the Retroactive Guideline Amendment, concerning certain criminal History Rules that have the Effect of Lowering Guideline Range and Term of Imprisonment and United States v. Armstead, 552 F.3d 769 (9th Cir.2009)."
Section 3882(c)(2) provides:
The court may not modify a term of imprisonment once it has been imposed except that -...
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant ..., the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
U.S.S.G. § 1B1.10(c) sets forth those amendments to the Sentencing Guidelines which are to be applied retroactively to reduce a sentence previously imposed.
Although Petitioner does not specify the amendment upon which he intends to rely, the only amendment to U.S.S.G. § 4A1.1, pertaining to criminal history category, and U.S.S.G. §4A1.2, pertaining to definitions and instructions for computing criminal history, subsequent to Petitioner's sentencing was in 2007 by Amendment 709. Amendment 709 is not listed as a covered amendment in U.S.S.G. § 1B1.10(c). The Ninth Circuit has held that Amendment 709 is not applied retroactively. United States v. Marler, 527 F.3d 874, 877 n.1 (9th Cir.), cert. denied, ___ U.S. ___, 129 S.Ct. 427 (2008).
Petitioner further contends that he intends "to move the Court pursuant to Carrington v. United States, 503 F.3d 888, 890 n.2 (9th Cir.2007) to attack the judgment that may have been correct when rendered, but that later became incorrect because circumstances that arose after the judgment was issued. 28 U.S.C. § 1651."
Petitioner's citations to Carrington and the All Writs Act indicate that he intends to file a petition for a writ of audita querela. A writ of audita querela is not an available remedy where the claims raised would be cognizable in a Section 2255 motion. Carrington, supra, citing United States v. ValdezPacheco, 237 F.3d 1077, 1080 (9th Cir.2001). Common law writs such as audita querela and coram nobis survive "'only to the extent that they fill "gaps" in the current system of post-conviction relief.'" Id.
These asserted grounds for relief in an anticipated post-conviction motion make clear that Petitioner is not entitled to production at government expense of Items 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12. Petitioner's anticipated claims appear to pertain only to his sentencing. Item 13, seeking a "Statement of Jurisdiction of the Court" is meaningless. 28 U.S.C. § 753(f) provides:
Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal.
However, Petitioner is not entitled to copies of transcripts or other court records at Government expense until he actually brings a post-conviction motion. See United States v. Lucatero, 2007 WL 1747077 (E.D.Cal.2007); United States v. Soto-Valdez, 2009 WL 1311954 (D.Ariz.2009).
For the reasons stated:
1. Petitioner Jesus Andrade's "Motion Requesting the Court to Order the Clerk to Provide Movant with Requested Documents in Order to File a Successive Habeas Petition and Meet the Threshold Requirements Mandated by AEDPA" is DENIED WITHOUT PREJUDICE.
IT IS SO ORDERED.