Petitioner, a federal prisoner proceeding pro se, has filed a document with the court styled, "Ellis Seeks a Writ of Error Audita Querela and or Coram Nobis Under 28 U.S.C. § 1651." (Doc. No. 1.) Pursuant to the court's November 3, 2011 order, petitioner has also filed an application requesting leave to proceed in forma pauperis. Petitioner has consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). See Doc. No. 3.
I. Application to Proceed In Forma Pauperis
Petitioner's application shows that he has $1,375.72 in his inmate trust account and that he has an average monthly balance of $1,343.96 and average monthly deposits of $2,100.89. The court will therefore deny petitioner's application. However, in light of the court's review of the petitioner's application, no order will issue requiring petitioner to pay the filing fee. 28 U.S.C. § 1914(a).
II. Petitioner's Petition and Supplemental Information On November 3, 2011, the court ordered petitioner to submit the following information to clarify the relief he seeks through his pending application:
(1) the date of petitioner's judgment of conviction for possession of cocaine and cocaine base in violation of 21 U.S.C. § 841; (2) the date(s) of petitioner's prior state convictions for felony drug offense(s); and (3) the type of action or actions (habeas, § 2255 motion, etc.) that petitioner previously filed challenging the federal judgment of conviction challenged here, including the court in which any such action was filed, the date of judgment, and disposition of the action.
According to petitioner's responses, on February 18, 2003, petitioner
was indicted for violating firearm and drug statutes. (Doc. No. 6 at
1.) On December 13, 2005, petitioner entered a plea of guilty,
pursuant to a plea agreement, to possession of five kilograms of
cocaine and fifty-grams of cocaine base in the U.S. District Court for
the Northern District of California. (Doc. No. 1 at 4; Doc. No. 6 at
2.) In the indictment brought against petitioner, the government
sought to increase the mandatory minimum sentence he faced from
ten-years to twenty-years pursuant to 21 U.S.C. § 851.*fn1
Petitioner objected to the use of his 1995 state drug
conviction to increase the minimum mandatory term of imprisonment in
his case but the assigned District Judge ruled against petitioner and,
on March 27, 2006, imposed a twenty-years mandatory minimum sentence.
(Doc. No. 1 at 4; Doc. No. 6 at 2.)
By this action, petitioner seeks to set aside his enhanced sentence of twenty-years imprisonment and reduce his sentence to ten-years. (Doc. No. 1 at 5.) Petitioner argues that he received ineffective assistance of counsel when his attorney failed "to properly investigate the prior conviction and commence vacatur [sic] proceedings[.]" (Id. at 18.) Petitioner contends that investigation would have shown that in 1995, petitioner was not informed that by pleading guilty to the felony drug offense in state court that the conviction could be used in a future prosecution to enhance a federal sentence. (Id.; Doc. No. 6 at 2.) Petitioner asserts that he is not attacking his state court conviction, but instead, is challenging his the sentence imposed in his subsequent federal case because he received ineffective assistance of counsel. (Doc. No. 1 at 18.)
Following his federal conviction, petitioner filed a § 2255 motion with the U.S. District Court for the Northern District of California. (Doc. No. 6 at 2.) The motion was denied on May 7, 2008. (Id.) Petitioner subsequently filed a motion to reopen his § 2255 motion in that court. (Id.) That motion is still pending.
Here, petitioner may not proceed by way of application for a writ of error audita querela before this court.
Audita querela, literally "the complaint having been heard," is a common law writ used to attack a judgment that was correct when rendered, but that later became incorrect because of the circumstances that arose after the judgment was issued.
Carrington v. United States, 503 F.3d 888, 890 n.2 (9th Cir. 2007). In this case, petitioner argues that his enhanced minimum mandatory sentence was incorrect when it was rendered and that it continues to be incorrect. There is no intervening event that has caused petitioner's sentence to become somehow invalid. Thus, the writ of audita querela is not an appropriate remedy with respect to petitioner's challenge to his sentence. In addition, the court finds that petitioner may not proceed with a writ of audita querela when he may proceed with a § 2255 action. United States v. Gamboa, 608 F.3d 492, 495 (9th Cir. 2010) ("We have previously held, however, that the statutory limits on second or successive habeas petitions do not create a "'gap'" in the post-conviction landscape that can be filled with the common law writs.").
As petitioner has indicated, he is seeking to reopen his § 2255 action which he previously filed with the U.S. District Court for the Northern District of California. Moreover, petitioner may seek permission from the U.S. Court of Appeals for the ...