United States v. Rhoads , 222 F. App'x 700 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
March 15, 2007
UNITED STATES CO URT O F APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-2115
v. (D.C. Nos. CIV-06-0047-JC/DJS and
CR-96-571-JC)
PHILLIP JASON RH OADS, (D .N.M .)
Defendant - Appellant.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
Phillip Rhoads, a federal prisoner represented by counsel, appeals the
denial of his Petition for W rit of Habeas Corpus, Petition for W rit of Audita
Querela, and M otion to Preserve Rights U nder H abeas Corpus. For substantially
the same reasons set forth by the district court, we AFFIRM the decision of the
district court, D EN Y Rhoads’ request for authorization to file a second or
successive habeas motion, and DISM ISS.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Rhoads pled guilty to one count of possession with intent to distribute one
hundred grams or more of methamphetamine in violation of 21 U.S.C.
§ 841(b)(1)(B) and one count of using and carrying a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c). He was sentenced to 248
months’ imprisonment and five years’ supervised release. Although Rhoads did
not appeal his conviction or sentence, he timely filed a motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence in federal district court in
February 1999, which the district court denied on the merits.
In January 2006, Rhoads, proceeding pro se, filed a “Petition for W rit of
Habeas Corpus[,] Petition for W rit of Audita Querela[,] [and] M otion to Preserve
Rights Under Habeas Corpus,” challenging the legality of his sentence. The
district court denied this motion, and Rhoads – now represented by counsel –
appeals. He argues that the court erred as a matter of law in (1) issuing an
“internally-contradictory” memorandum that failed to articulate a rational reason
for denying his petition, (2) recharacterizing his petition as a § 2255 motion, and
(3) denying the recharacterized § 2255 motion for lack of subject matter
jurisdiction.
To support his contention that the district court issued an internally
inconsistent memorandum, Rhoads points to the court’s statement that his petition
may be brought only under § 2255 and its allegedly contradictory statement
declining to recharacterize his petition as a § 2255 motion. W e see no
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contradiction here. The court properly determined that the relief sought by
Rhoads must be pursued under § 2255. See United States v. Torres, 282 F.3d
1241, 1245 (10th Cir. 2002) (“[A] writ of audita querela is not available to a
petitioner when other remedies exist, such as a motion to vacate sentence under
28 U.S.C. § 2255.”) (internal citations and quotations omitted). It then
considered construing Rhoads’ petition as a § 2255 motion, and permissibly
declined to do so “because the applicable limitation period has long expired and
Defendant previously filed a § 2255 motion.” See United States v.
Valadez-Camarena, 402 F.3d 1259, 1261 (2005) (holding that a district court does
not abuse its discretion in declining to recast pleadings as a § 2255 motion when
relief would be “facially barred as untimely . . . or as second or successive under
28 U.S.C. § 2255”) (internal citation and quotation om itted).
Rhoads’ remaining challenges to the district court’s order rest on the
assumption that the court proceeded to construe his petition as a motion under
§ 2255. This assumption misreads the court’s decision. The court explicitly
stated, “Defendant’s motion will not be recharacterized as a § 2255 motion,” and
ruled, “Defendant’s Petition for W rit of Habeas Corpus, Petition for W rit of
Audita Querela, and M otion to Preserve Rights Under Habeas Corpus . . . filed
January 17, is DENIED.” Based on this clear language, we conclude the district
court neither construed Rhoads’ petition as a § 2255 motion nor adjudicated the
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merits of a recast § 2255 motion. Thus, Rhoads’ remaining challenges to the
court’s decision fail.
W e construe Rhoads’ pro se notice of appeal and his brief requesting a
COA as a request for authorization to file a second or successive § 2255 petition.
See U nited States v. Pedraza, 466 F.3d 932, 934 (10th Cir. 2006). Because
Rhoads does not rely on newly discovered evidence, he may escape the bar on
second or successive § 2255 motions only if he shows that his claim is based on a
“new rule of constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable.” § 2255. Although he
contends that his invocation of U nited States v. Booker, 543 U.S. 220 (2005),
suffices for this showing, Booker is not applied retroactively to cases on
collateral review. Bey v. United States, 399 F.3d 1266, 1269 (2005).
W e AFFIRM the decision of the district court, DENY Rhoads’ request for
authorization to file a second or successive § 2255 motion, and DISM ISS.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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