In Re: Lawrence Webb , 491 F. App'x 424 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1995
In re: LAWRENCE MCARTHUR WEBB, a/k/a Ted Paige,
Petitioner.
On Petition for Writ of Mandamus.
(7:06-cr-00079-GEC-RSB-2)
Submitted: December 20, 2012 Decided: December 26, 2012
Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Lawrence McArthur Webb, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lawrence McArthur Webb has filed in this court a
petition for a writ of audita querela and mandamus, pursuant to
the All Writs Act, 28 U.S.C. § 1651(a) (2006), seeking to
challenge the statutory enhancement to his sentence for
conspiracy to distribute cocaine and cocaine base and related
offenses. A writ of audita querela or mandamus is not available
to a petitioner when other avenues of relief are available, such
as a motion under 28 U.S.C.A. § 2255 (West Supp. 2012). United
States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); United
States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992) (explaining
that “writ [of audita querela] could not be invoked by a
defendant challenging the legality of his sentence who could
otherwise raise that challenge under . . . § 2255”); see In re
First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir. 1988)
(setting forth circumstances under which mandamus can be
invoked). The fact that Webb cannot proceed under § 2255 unless
he obtains authorization from this court to file a successive
motion does not alter this conclusion. United States v. Valdez–
Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (“We agree with our
sister circuits . . . that a federal prisoner may not challenge
a conviction or sentence by way of a petition for a writ
of audita querela when that challenge is cognizable under § 2255
. . . .”).
2
Accordingly, although we grant Webb’s motion to
proceed in forma pauperis, we deny his petition for a writ of
audita querela and mandamus. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
PETITION DENIED
3