The opinion of the court was delivered by: Present: The Honorable David O. Carter, Judge
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT:
None Present None Present
PROCEEDINGS: (IN CHAMBERS): ORDER DENYING PETITION FOR A
WRIT OF AUDITA QUERELA AND ALL OTHER MOTIONS
Before the Court are nine motions by pro se Petitioner Maxwell Joelson: (1) a Petition for a Writ of Audita Querela (Dkt. 1); (2) a Motion for Appointment of Counsel (Dkt. 4); (3) a Motion for Leave to Expand or Supplement Resentencing Court Record (Dkt. 5); (4) a Request for New Resentencing Proceedings (Dkt. 7); (5) a Motion for a Finding of Waiver by the Government (Dkt. 8); (6) a Motion for Leave to File an Oversized Supplement for Writ of Audita Querela (Dkt. 9); (7) a Motion for Leave to File an Oversized Supplement for Writ of Audita Querela (Dkt. 10); (8) a Supplemental Motion for Appointment of Counsel (Dkt. 11); and (9) a Supplemental Motion for Leave to Expand Court Record (Dkt. 12). After reviewing the motions and opposition the Court DENIES Petitioner's motions.*fn1
In February of 1991, Petitioner Maxwell Joelson ("Petitioner") was convicted after a jury trial on four drug-trafficking counts: (1) conspiracy to import cocaine, in violation of 21 U.S.C. §§ 952 and 963; (2) conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (3) aiding and abetting the importation of cocaine in violation of 21 U.S.C. § 2; and (4) possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 821(a)(1). He was sentenced to concurrent life sentences on the four counts. Petitioner appealed, arguing that the district court erred by increasing his offense level by two levels pursuant to section 2D1.1(b)(2). The Ninth Circuit affirmed, but remanded for sentencing without the level increase. United States v. Joelson, 7 F.3d 174 (9th Cir. 1993). Petitioner then petitioned for certiorari, which was denied. Joelson v. United States, 510 U.S. 1019, 114 S.Ct. 620, 126 L.Ed.2d 584 (1993). On remand, the district court sentenced Petitioner to 360 month's imprisonment on each of the four counts to run concurrently. The Ninth Circuit affirmed the sentence. The Petitioner again petitioned for certiorari, which was denied on October 30, 1995. Joelson v. United States, 516 U.S. 955, 116 S.Ct. 405, 133 L.Ed. 2d 324 (1995).
Petitioner filed his first motion to vacate or correct his sentence under 28 U.S.C. § 2255 on May 13, 1996. The district court denied the motion and the Ninth Circuit affirmed. Petitioner has filed three applications for leave to file a second or successive petition with the most recent filed on May 23, 2011 which the Ninth Circuit denied on August 10, 2011.
On October 20, 2011, Petitioner filed a petition that he styled as a petition for a writ of audita querela under 28 U.S.C. §1651.
Petitioner contends that his request for writ of autida querela is fundamentally sound due to the recent Supreme Court decision, Pepper v. United States, 131 S.Ct. 1229 (2011). The government contends that Petitioner's writ of audita querela is merely a disguised 28 U.S.C. § 2255 motion which must be dismissed because Petitioner is ...