United States v. Jose Antonio Doyharzabal

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 20, 2009
No. 08-14527 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 87-00516-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ANTONIO DOYHARZABAL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 20, 2009)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Jose Antonio Doyharzabal appeals pro se the district court’s denial of his
motion for reconsideration of its order denying his petition for a writ of audita
querela.1 He contends that a writ of audita querela is the only remaining avenue by
which he can challenge the constitutionality of his sentence and seek retroactive
application of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005).
We “review de novo the question of whether a prisoner may challenge his
sentence by filing a motion for a writ of audita querela.” United States v. Holt, 417
F.3d 1172, 1174 (11th Cir. 2005) (per curiam).
Audita querela is “an ancient writ used to attack the enforcement of a
judgment after it was rendered.” Id. Although we have noted that “federal courts
may properly fill the interstices of the federal postconviction remedial framework
through remedies available at common law,” id. at 1175 (quotation omitted), a writ
of audita querela may not be granted where the “relief [sought] is cognizable under
[28 U.S.C.] § 2255.” Id. Here the relief that Doyharzabal seeks—vacating his
sentence as unconstitutional—falls within the scope of § 2255.2 Therefore, he
1
Doyharzabal had previously filed an unsuccessful 28 U.S.C. § 2255 motion to vacate
his conviction, which the district court denied.
2
Section 2255 provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution . . . or that the sentence was in excess of the maximum authorized by
law . . . may move the court which imposed the sentence to vacate, set aside or correct
the sentence.
2
cannot seek relief from his sentence under a writ of audita querela. The district
court properly denied his motion.
AFFIRMED.
28 U.S.C. § 2255(a).
3