United States v. Mora ( 2009 )

09-0358-cr
USA v. Mora
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference
to that database and the docket number of the case in which the order was entered.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the twenty-first day of December, two thousand and nine.
PRESENT:
GUIDO CALABRESI,
JOSÉ A. CABRANES,
BARRINGTON D. PARKER,
Circuit Judges.
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WILLIAM MORA,
Defendant-Appellant,
v. No. 09-0358-cr
UNITED STATES OF AMERICA ,
Appellee.
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FOR APPELLANT: William Mora, pro se, Inez, KY.
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FOR APPELLEE: Benton J. Campbell, United States Attorney, and Peter A. Norling and
David C. James, Assistant United States Attorneys, United States
Attorney’s Office, Eastern District of New York, Brooklyn, NY.
Appeal from a January 6, 2009 order of the United States District Court for the Eastern District
of New York (Charles P. Sifton, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of the District Court is AFFIRMED.
Appellant William Mora, pro se, appeals from an order of the District Court denying his petition
for a writ of audita querela. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues raised on appeal.
We review de novo a district court’s denial of a writ of audita querela. United States v. Richter, 510
F.3d 103, 104 (2d Cir. 2007). Although formally abolished in civil cases, see Fed. R. Civ. P. 60(e), the
writ of audita querela “remain[s] available in very limited circumstances with respect to criminal
convictions,” United States v. LaPlante, 57 F.3d 252, 253 (2d Cir. 1995). A writ of audita querela “is
probably available where there is a legal, as contrasted with an equitable, objection to a conviction that
has arisen subsequent to the conviction and that is not redressable pursuant to another post-conviction
remedy.” Id.In Richter, 510 F.3d at 104, we considered a petitioner who, like appellant, sought a writ of
audita querela claiming (1) that his sentencing under the then-mandatory United States Sentencing
Guidelines was rendered unconstitutional by United States v. Booker, 543 U.S. 220 (2005), and (2) that he
had no other available avenue of relief. We reasoned that, because “‘Booker does not apply retroactively
to cases on collateral review,’” there was “no colorable claim of a constitutional violation, and, hence,
the absence of other avenues of collateral attack [did] not give rise to serious constitutional questions.”
Richter, 510 F.3d at 104 (quoting Guzman v. United States, 404 F.3d 139, 140 (2d Cir. 2005)). “As a
result,” we held, “a writ of audita querela [did] not lie.” Id.Our holding in Richter controls this case, and thus the District Court properly denied appellant’s
petition for a writ of audita querela.
We have considered appellant’s remaining arguments on appeal and find them to be meritless.
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CONCLUSION
For the foregoing reasons, the January 6, 2009 order of the District Court is AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
By _______________________________
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