United States v. Johnson ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 12, 2009
No. 08-11145
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID ANTOINE JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-185-1
Before GARZA, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
David Antoine Johnson, federal prisoner # 27125-177, appeals the district
court’s denial of his petition for a writ of audita querela, filed pursuant to 28
U.S.C. § 1651. In 2002, Johnson pled guilty to two counts of a six-count
indictment for bank robbery and was sentenced to a total of 646 months of
imprisonment.
Johnson contends that the writ of audita querela is available to him
because the Supreme Court’s decision in United States v. Booker, 543 U.S. 220
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-11145
(2005) rendered the once-mandatory sentencing guidelines advisory and that
Booker was unavailable to him at the time of his sentencing and the filing of his
original § 2255 petition. He reasons that his sentence was imposed in violation
of the principles announced in Booker, and that therefore he is entitled to relief
in the form of a writ of audita querela.
A prisoner may not seek a writ of audita querela if he “may seek redress
under [28 U.S.C.] § 2255.” United States v. Banda, 1 F.3d 354, 356 (5th
Cir.1993). Johnson argues that this bar does not apply to him because Booker
does not provide him a means of redress under § 2255. He is correct to
acknowledge that he could not use Booker to avail himself of § 2255 because
Booker does not apply retroactively to cases on collateral review and does not
provide a ground for filing a successive § 2255 motion. United States v. Gentry,
432 F.3d 600, 605 (5th Cir.2005); In re Elwood, 408 F.3d 211, 212-13 (5th
Cir.2005). Johnson, however, errs in failing to appreciate that the fact that a
movant cannot meet the requirements for bringing a successive § 2255 motion
does not render the § 2255 remedy unavailable. Tolliver v. Dobre, 211 F.3d 876,
878 (5th Cir.2000). Since Johnson has not shown that § 2255 is unavailable, he
has not shown that he is entitled to the relief requested. Accordingly, the
judgment of the district court is AFFIRMED.
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