Joe Patron v. Rick Thaler, Director , 360 F. App'x 588 ( 2010 )

Case: 09-10452 Document: 00511005351 Page: 1 Date Filed: 01/15/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2010
No. 09-10452
Summary Calendar Charles R. Fulbruge III
Clerk
JOE ROBERT PATRON,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISON,
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CV-82
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Joe Robert Patron, Texas prisoner # 1176158, seeks a certificate of
appealability (COA) from the dismissal of his petition for writ of audita querela,
in which he challenged his conviction and sentence for aggravated sexual assault
of a child. A COA is not required for Patron to appeal. See 28 U.S.C. § 2253(c).
We may affirm the district court’s judgment on any basis supported by the
record. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (denial of § 2255
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10452 Document: 00511005351 Page: 2 Date Filed: 01/15/2010
No. 09-10452
motion). The district court correctly dismissed Patron’s petition for writ of
audita querela because redress was available to Patron under 28 U.S.C. § 2254.
See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Tolliver v. Dobre,
211 F.3d 876, 878 (5th Cir. 2000); see also Felker v. Turpin, 518 U.S. 651, 662
(1996). It is irrelevant that Patron can no longer meet the standard for bringing
a timely § 2254 petition. Cf. Tolliver, 211 F.3d at 878 (holding that fact that
federal prisoner filed unsuccessful 28 U.S.C. § 2255 motion or that federal
prisoner cannot meet requirements for filing successive § 2255 motion does not
render § 2255 remedy unavailable).
Accordingly, Patron’s motion for a COA is DENIED as unnecessary and
the judgment of the district court is AFFIRMED.
2