UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 29, 2006
MELVIN DOVE, PETITIONER,
UNITED STATES OF AMERICA, RESPONDENT.
The opinion of the court was delivered by: Thomas J. McAVOY, Senior Judge
DECISION and ORDER
Presently before the Court for consideration is a petition from pro se petitioner Melvin Dove seeking a writ of audita querela to correct his sentence. Dkt. No. 1.
Petitioner pleaded guilty to two counts of a multi-count indictment charging petitioner and others with arson and attempted arson and was sentenced in July, 1997 to a term of 240 months imprisonment. Dkt. No. 1 at 1. Petitioner now seeks relief from his sentence, claiming that it was imposed in violation of United States v. Booker, 543 U.S. 220 (2005), because the U.S. Sentencing Guidelines were construed as mandatory by the trial court. Id. at 2-6.
The common law writ of audita querela has been defined as "a means of attacking a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition." United States v. Sperling, 2003 WL 21518359 * (S.D.N.Y. June 27, 2003) quoting United States v. Reyes, 945 F.2d 862, 863 n. 1 (5th Cir. 1991).*fn1 In Triestman v. United States, 124 F.3d 361, 380 & n. 24 (2d Cir. 1997) the United States Court of Appeals for the Second Circuit noted that the writ of audita querela might be available to provide habeas corpus relief "when the remedy by motion [pursuant to 28 U.S.C. § 2255] is inadequate or ineffective to test the legality of detention."
While this common law writ might be available in certain extraordinary circumstances, it is not available to petitioner in this case. The Second Circuit has held that "Booker is not retroactive, i.e., it does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005). Thus, petitioner is not caught in a gap between remedies that may be filled by the use of a common law writ; rather, he is absolutely barred from presenting his claim because the Supreme Court's holding in Booker does not apply to his conviction and sentence. In short, Booker cannot be used to find petitioner's sentence illegal no matter what form his petition for relief takes. See Tobias v. United States, 2006 WL 287197 (D.Conn. Feb. 7, 2006) (audita querela not available to raise Booker challenge to sentence imposed in 2000).
WHEREFORE, it is hereby
ORDERED, that the petition for writ of audita querela filed by petitioner (Dkt. No. 1) is denied and dismissed, and it is further
ORDERED, that the Clerk serve a copy of this Order on the petitioner.
IT IS SO ORDERED.