United States v. Francis Cox ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 8 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30254
Plaintiff-Appellee, D.C. No.
3:11-cr-00022-RJB-1
v.
FRANCIS SCHAEFFER COX, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Robert J. Bryan, District Judge, Presiding
Argued and Submitted June 17, 2021
Anchorage, Alaska
Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.
Appellant Francis Schaeffer Cox (Cox) appeals the district court’s denial of
his motion for a writ of audita querela. Cox was convicted of, among other things,
conspiracy to murder a federal officer in violation of 18 U.S.C. §§ 1117 and 1114
and solicitation to murder a federal officer in violation of 18 U.S.C. §§ 373 and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1114. On appeal, a previous panel affirmed the conspiracy conviction, but
reversed the solicitation conviction. See United States v. Cox, 705 F. App’x 573,
575 (9th Cir. 2017). Cox maintains that the panel’s reversal of the solicitation
charge undermined the “jurisdictional foundation” of the conspiracy charge.
1. Reviewing de novo, we affirm the denial of Cox’s motion seeking a
writ of audita querela. See United States v. Gamboa, 608 F.3d 492, 494 (9th Cir.
2010). Cox is precluded from seeking the writ because he may pursue the same
relief by way of a habeas petition. See id. at 494–95. Cox concedes that he may
file a habeas petition in the future, and provides no authority to support the
preemptive issuance of a writ of audita querela prior to filing a habeas petition.
2. Cox reiterates his insufficiency-of-the-evidence argument, but the
parties agree that we are bound by the prior panel’s decision rejecting this claim.
For the reasons set forth in the prior disposition, we again reject Cox’s
insufficiency argument. See Cox, 705 F. App’x at 576.
AFFIRMED.
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