UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 30, 2010
GERARDO GONZALEZ; AND JOSE LUIS VALENCIA-MENDOZA, PETITIONERS/DEFENDANTS,
UNITED STATES OF AMERICA, RESPONDENT/PLAINTIFF.
The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER DISMISSING PETITION FOR WRIT OF ERROR AUDITA QUERELA [Doc. No. 1]
Petitioners Gerardo Gonzalez and Jose Luis Valencia-Mendoza ("Petitioners"), both federal prisoners proceeding pro se, have filed a writ of error audita querela pursuant to the All Writs Act, 28 U.S.C. § 1651. For the reasons stated herein, the Court concludes that Petitioners are not entitled to issuance of a writ of error audita querela. The petition, therefore, is sua sponte dismissed without further proceedings.
On January 12, 1998, Petitioners entered guilty pleas on charges that they knowingly and intentionally conspired together with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and 846. (Doc. Nos. 2, 3, 6.) On the same day, this Court sentenced Petitioner Gerardo Gonzalez to 251 months in custody, to run concurrent with time imposed in a related New York State case, and five years of supervised release. (Doc. No. 6.) This Court also sentenced Petitioner Jose Luis Valencia-Mendoza to 199 months in custody, to run concurrent with time imposed in a related New York State case, and five years of supervised release. (Doc. No. 6.)
On April 26, 2010, Petitioners filed the instant petition for a writ of error audita querela.*fn1 (No. 10CV1215, Doc. No. 1.)
"At common law, the writ of audita querela permitted a judgment debtor to obtain equitable relief from a legal judgment because of some defense or discharge arising after the entry of the judgment." United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001) (citing 7 Am. Jur. 2d Audita Querela § 1 (1997)). The common law writ of audita querela remains available today; however, it is only available to federal prisoners "to 'fill the interstices of the federal post-conviction remedial framework.'" Valdez-Pacheco, 237 F.3d at 1079 (quoting Doe v. INS, 120 F.3d 200, 203 (9th Cir.1997)). The writ is not available "to challenge a conviction or sentence when the prisoner's contentions could otherwise be raised in a motion pursuant to § 2255." Valdez-Pacheco, 237 F.3d at 1079-80.
Petitioners raise four arguments. First, Petitioners challenge their sentences, based on the Supreme Court's decision in United States v. Booker/Fanfan, 543 U.S. 220 (2005). Second, Petitioners argue the drug type and quantity-based "sentencing factors" considered in their cases are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). Third, Petitioners argue their convictions and sentenced should be vacated because they violate the double jeopardy clause of the Fifth Amendment. Finally, Petitioners argue the Court must obtain a new "Presentencing Report Investigation" (which Petitioners refer to as a "PSIR") and resentence Petitioners, based on the Supreme Court's decisions in Jones v. United States, 526 U.S. 227 (1999), Apprendi, 530 U.S. 466, and Blakely v. Washington, 542 U.S. 296 (2004). Petitioners argue the PSIR did not allow the Court to make findings regarding the government's allegations which supported the sentencing enhancements. Petitioners further argue the PSIR indicated that the sentencing guidelines were mandatory and recommended a sentence exceeding the penalty range to which Petitioners were truly exposed.
Despite Petitioners' attempt to re-cast their claims, they seek to attack their sentences and the constitutionality of their convictions, subjects firmly within the scope of challenges that may be raised under 28 U.S.C. § 2255.*fn2 Because there is no gap to be filled, Petitioners are not entitled to a writ of audita querela. The writ of audita querela is not available to Petitioners to circumvent the limitations Congress has placed upon prisoners seeking post-conviction collateral relief. Valdez-Pacheco, 237 F.3d at 1080.*fn3
The Court DENIES the petition for a writ of audita querela. The Clerk shall terminate this civil case.
IT IS SO ORDERED.