United States v. Ailsworth

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2013
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff−Appellee,
v. No. 12-3342
(D.C. No. 5:94-CR-40017-SAC-1)
JESSIE AILSWORTH, JR., (D. Kan.)
Defendant−Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before KELLY, HOLMES, and MATHESON, Circuit Judges.
Jessie Ailsworth, Jr., a federal prisoner proceeding pro se, seeks to appeal the
district court’s dismissal for lack of jurisdiction of his petition for a writ of audita
querela under 28 U.S.C. § 1651 (All Writs Act). We deny a certificate of
appealability (COA) and dismiss this proceeding.
Background
Ailsworth was convicted by a jury of drug-trafficking and other offenses in
1996 and was sentenced to 360 months’ imprisonment and ten years’ supervised
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
release. The length of his prison sentence was based, in part, on the district court’s
finding that twelve kilograms of cocaine base were attributable to him.
After an unsuccessful appeal to this court, see United States v. Ailsworth,
138 F.3d 843 (10th Cir. 1998), he filed a 28 U.S.C. § 2255 motion to vacate, set
aside, or correct his sentence. The district court granted him partial relief based on
the government’s failure to file an information stating the prior convictions that it
would rely on in seeking a sentence enhancement, as required by 21 U.S.C.
§ 851(a)(1). See United States v. Ailsworth, 206 F. Supp. 2d 1148, 1152-54 (D. Kan.
2002). The government initially asserted that it had filed the information required by
§ 851(a)(1), and the district court therefore ordered an evidentiary hearing. See id. at
1154. But the government later confessed error and moved the court to amend
Ailsworth’s sentence. The district court had determined that “[t]he only part of the
defendant’s sentence affected by a prior conviction that would trigger the § 851
notice requirement was the term of supervised release” because Ailsworth’s “term of
custody was not enhanced as a result of any prior convictions subject to § 851
notice.” Id. at 1152 & n.1 (footnote omitted). The court therefore entered an
amended judgment on September 12, 2002, reducing Ailsworth’s term of supervised
release from ten years to five years. We denied his application for a COA.
In 2006, Ailsworth sought authorization from this court to file a second or
successive § 2255 motion arguing that his sentence violated United States v. Booker,
543 U.S. 220 (2005). We denied authorization because Booker was not made
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retroactive to cases on collateral review. In 2008, he moved for a sentence reduction
under 18 U.S.C. § 3582(c)(2), seeking retroactive application of an amendment to the
sentencing guidelines applicable to crack cocaine offenses. The district court denied
the motion, and we affirmed.
Ailsworth’s petition for a writ of audita querela under the All Writs Act is his
latest attempt to obtain a reduction of his prison sentence. He argued that, in ruling
on his § 2255 motion and finding error with respect to the § 851 sentencing
enhancement, the district court was required to vacate his entire sentence and proceed
with resentencing, rather than amending the judgment to reduce only his term of
supervised release. He asserted that, due to the Supreme Court’s intervening decision
in Apprendi v. New Jersey, 530 U.S. 466 (2000), his prison sentence would have been
shortened upon resentencing in 2002. Specifically, he contended that he could not be
resentenced based on the district court’s finding that twelve kilograms of crack
cocaine were attributable to him when the jury only found him guilty of crack
cocaine offenses involving 33.81 grams. Ailsworth maintained that, since 2002, he
has been serving an unconstitutional sentence under Apprendi. The district court
concluded that Ailsworth’s petition was an unauthorized second or successive § 2255
motion and dismissed it for lack of jurisdiction.
Discussion
Ailsworth must obtain a COA to pursue an appeal. See United States v.
Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). Because the district court’s ruling
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rests on procedural grounds, he must show both “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(emphasis added). Ailsworth meets one, but not both, parts of this standard.
Addressing the second part, we conclude that jurists of reason would find it
debatable whether the district court’s procedural ruling in this case was correct. As a
result of Ailsworth’s first § 2255 motion, the court entered an amended judgment
reducing the length of his term of supervised release. In Magwood v. Patterson, the
Supreme Court held that “where . . . there is a new judgment intervening between the
two habeas petitions, an application challenging the resulting new judgment is not
‘second or successive’ at all.” 130 S. Ct. 2788, 2802 (2010) (citation and quotation
omitted). The Court’s decision addressed the meaning of “second or successive” in
28 U.S.C. § 2244(b), as it applies to habeas petitions under 28 U.S.C. § 2254. See
Magwood, 130 S. Ct. at 2796-97. It concluded that use of the term “judgment” in
§ 2254(b) was “significant” and held “that the phrase ‘second or successive’ must be
interpreted with respect to the judgment challenged.” Id. at 2797.
We have applied the holding in Magwood to conclude that a § 2255 motion
filed after an amended judgment was not second or successive under § 2255(h). See
United States v. McGaughy, 670 F.3d 1149, 1159 n.7 (10th Cir. 2012) (citing
Magwood and concluding, without further discussion, that a second § 2255 claim was
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not second or successive “because it relate[d] to a new sentence”). Three of our
sister circuits have also extended the applicability of Magwood to motions under
§ 2255. See Suggs v. United States, 705 F.3d 279, 282-85 (7th Cir. 2013); In re
Lampton, 667 F.3d 585, 587-90 (5th Cir. 2012); Johnson v. United States, 623 F.3d
41, 45-46 (2d Cir. 2010). Ailsworth’s petition for a writ of audita querela challenged
the district court’s entry of the amended judgment without first providing him a full
resentencing. Under the holding in Magwood, it is debatable whether the district
court was correct in deeming his petition to be an unauthorized second or successive
§ 2255 motion because he had not previously filed a § 2255 motion challenging the
amended judgment.
To obtain a COA, however, Ailsworth must also demonstrate that reasonable
jurists would debate whether his petition states a valid claim of the denial of a
constitutional right. He contends that he was entitled to a full resentencing once the
district court determined it had erred in enhancing his sentence. He asserts,
In 2002 Ailsworth challenged his sentence, [arguing that it] had
been impermissibly enhanced via application of a 21 U.S.C. § 851enhancement that should not have been applied. The GOVERNMENT
CONFESSED ERROR! The 28 U.S.C. § 2255 challenge should have
resulted in the 30 year sentence being VACATED, to the end that a
resentencing would occur. This did not occur. Rather, the government
orchestrated the District Court’s amending the original judgment,
affecting only Ailsworth’s supervised release, and affecting nothing of
the sentence of incarceration originally imposed.
Application for COA at 15. But Ailsworth does not dispute the district court’s
conclusion that the § 851 error affected only his term of supervised release. He states
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only that vacating the entire sentence is “what is done in 28 U.S.C. § 2255 cases.”
Id. at 16. His contentions fail to make the showing necessary to obtain a COA
because nothing about the district court’s decision to amend the judgment with regard
to his term of supervised release, rather than grant him a full resentencing, implicates
the denial of a constitutional right. Cf. Dulworth v. Jones, 496 F.3d 1133, 1138
(10th Cir. 2007) (denying COA because district court’s denial of motion for costs did
not implicate a denial of a constitutional right).
Conclusion
Because Ailsworth has not demonstrated with respect to his claim that “jurists
of reason would find it debatable whether the petition states a valid claim of the
denial of a constitutional right,” Slack, 529 U.S. at 484, we deny his application for a
COA and dismiss the appeal. Ailsworth’s motion for leave to proceed on appeal
without prepayment of costs or fees is granted. His motion to compel a response
from the United States is denied.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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