United States District Court, E.D. Texas, Beaumont Division
MEMORANDUM OPINION AND ORDER
HEARTFIELD UNITED STATES DISTRICT JUDGE
Edmon Gasaway, an inmate confined in the Federal Correctional
Institution in Tucson, Arizona, filed this petition for writ
of audita querela.
1996, following a jury trial in the Eastern District of
Texas, petitioner was convicted of the following offenses:
(1) conspiracy to unlawfully obstruct commerce, in violation
of 18 U.S.C. § 1951; (2) unlawfully obstructing
commerce, in violation of 18 U.S.C. § 1951; and (3)
using and carrying a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c)(1). On
March 3, 1997, petitioner was sentenced to 387 months
appealed his convictions to the Fifth Circuit Court of
Appeals. The Fifth Circuit affirmed the judgment of the
district court in a published opinion. United States v.
Hickman, 151 F.3d 446 (5th Cir. 1998). A petition for
rehearing en banc was granted. On June 21, 1999,
however, the convictions were affirmed by an equally divided
court. United States v. Hickman, 179 F.3d 230 (5th
previously filed a motion to vacate, set aside or correct
sentence pursuant to 28 U.S.C. § 2255. See Gasaway
v. United States, Civil Action No. 1:02cv403 (E.D. Tex.
June 25, 2002). The motion was dismissed on June 25, 2002.
Id. Petitioner filed three additional Section 2255
motions in 2013. The motions were all denied. See Gasaway
v. United States, Civil Action No. 1:13cv434 (E.D. Tex.
2013); Gasaway v. United States, Civil Action No.
1:13cv496 (E.D. Tex. 2013); and Gasaway v. United
States, Civil Action No. 1:13cv560 (E.D. Tex. 2013).
brings this petition arguing the district court erred by
imposing a twenty-five year sentence for his two Section
924(c) gun convictions. Petitioner contends he should be
resentenced because he was charged and convicted on multiple
firearm offenses in his trial and the order of sentencing was
arbitrary because of an ambiguity in the statute.
Accordingly, petitioner contends the district court should
have applied the principle of lenity.
filed this action as a petition for writ of audita
querela. “The writ of audita querela
permits a defendant to obtain relief against a judgment
because of some legal defense arising after the
judgment.” United States v. Banda, 1 F.3d 354,
356 (5th Cir. 1993). See also United States v.
Miller, 599 F.3d 484, 489 (5th Cir. 2010) (“a writ
of audita querela is used to challenge a judgment
that was correct at the time it was rendered but which is
made infirm by matters that arose after its
rendition.”). “It is an open question whether the
obsolescent writ survives as a post-conviction remedy . . . .
Moreover, the writ is not available where, as here, the
defendant may seek redress under § 2255.”
Banda, 1 F.3d at 356. While petitioner challenges
his sentence based on cases decided after his sentencing, he
has failed to show that redress is unavailable through a
§ 2255 motion. Thus, even if audita querela
remains a post-conviction remedy, it is not available to this
2255 provides the primary means of collaterally attacking a
federal conviction and sentence. Tolliver v. Dobre,
211 F.3d 876, 877 (5th Cir. 2000). Relief under this section
is warranted for errors that occurred at trial or sentencing.
Cox v. Warden, Fed. Detention Ctr., 911 F.2d 1111,
1113 (5th Cir. 1990). As mentioned above, petitioner filed a
previous motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255. Thus, petitioner is barred
from proceeding with a motion to vacate without first
receiving permission from the appropriate court of appeals,
in this case the Fifth Circuit. See 28 U.S.C. §
2255(h). As petitioner has neither asserted nor demonstrated
he has received such permission, his current filing must be
dismissed without prejudice.
there is one exception to this general rule regarding Section
2255 proceedings. A prisoner may use Section 2241 as the
vehicle for attacking the conviction if it appears that the
remedy by motion “is inadequate or ineffective to test
the legality of his detention.” 28 U.S.C. § 2255.
A petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 is not a substitute for a motion to vacate
sentence pursuant to 28 U.S.C. § 2255, and the burden of
coming forward with evidence to show the inadequacy or
ineffectiveness of a motion under § 2255 rests squarely
on the petitioner. Jeffers v. Chandler, 253 F.3d 827
(5th Cir. 2001).
has filed at least four previous motions to vacate, set aside
or correct sentence under 28 U.S.C. § 2255. A prior
unsuccessful § 2255 motion, however, or the inability to
meet AEDPA's “second or successive”
requirement, does not make § 2255 inadequate or
ineffective. Tolliver, 211 F.3d at 878. Further,
“[t]o entertain a § 2241 habeas petition, the
district court must, upon the filing of the petition, have
jurisdiction over the prisoner or his custodian.”
United States v. Gabor,905 F.2d 76, 78 (5th Cir.
1990). A § 2241 petition must be filed in the district
where the petitioner is incarcerated. Hooker v.
Sivley,187 F.3d 680, 682 (5th Cir. 1999). As petitioner
is not confined ...