UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
June 4, 2012
ROBERT CHARLES BURNS, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS
Petitioner has filed a Petition for a Writ of Audita Querela pursuant to the All Writs Act. Petition has also filed a motion to proceed in forma pauperis.
It appears that Petitioner has sufficient funds in his account to pay the filing fee. Therefore, Petitioner's motion to proceed in forma pauperis is DENIED.
If Petitioner wishes to proceed with this lawsuit, Petitioner must pay the $350 filing fee in full. However, the Court cautions Petitioner that the Ninth Circuit has held that a prisoner may not challenge a federal conviction or sentence by way of a petition for a writ of audita querela when that challenge is cognizable under § 2255. United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). The fact that the prisoner is precluded from raising his claims in a § 2255 motion by the provisions of the Anti-terrorism and Effective Death Penalty Act of 1996 that bar successive petitions, does not make the remedy of a writ of audita querela available to him. Id.
If Petitioner still wishes to proceed with this lawsuit, Petitioner must pay the $350 filing fee on or before July 2, 2012. If Petitioner fails to do so, the Court will dismiss this case. IT IS SO ORDERED.
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