Carlos Ortiz v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6447
CARLOS ORTIZ,
Petitioner - Appellant,
v.
UNITED STATES OF AMERICA,
Respondent - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:12-cv-00689-WDQ)
Submitted: January 28, 2014 Decided: February 21, 2014
Before DAVIS, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Norman, NORMAN & TAYEH, LLC, Westlake, Ohio, for
Appellant. Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland; Sujit Raman, Assistant United States
Attorney, Mara Zusman Greenberg, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carlos Ortiz appeals the district court’s orders
denying his petition for a writ of audita querela and his motion
filed pursuant to Fed. R. Civ. P. 59(e). Ortiz argues that the
district court improperly construed his petition as asserting
claims under Apprendi v. New Jersey, 530 U.S. 466 (2000), and
failed to address his contention that his life sentence amounts
to a miscarriage of justice. The Government has asked that we
consider Ortiz’s appeal as a petition for authorization to file
a successive 28 U.S.C. § 2255 (2012) motion and deny it. For
the reasons set forth within, we affirm the district court’s
orders and deny the Government’s motion as moot. See, e.g.,
United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (per
curiam) (reviewing “de novo a district court’s grant or denial
of a writ of audita querela”).
Under the All Writs Act, federal courts “may issue all
writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of
law.” 28 U.S.C. § 1651(a) (2012). However, prisoners may not
resort to such writs when their challenges would be cognizable
under § 2255 or to otherwise circumvent the statutory limits on
collateral attacks. See United States v. Rhines, 640 F.3d 69,
72 (3d Cir. 2011); United States v. Gamboa, 608 F.3d 492, 494-95
(9th Cir. 2010); cf. In re Vial, 115 F.3d 1192, 1194 n.5 (4th
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Cir. 1997) (en banc) (stating that § 2255 is not inadequate or
ineffective to test legality of detention merely because
petitioner is unable to obtain relief under § 2255). As the
Supreme Court has explained, § 1651 “is a residual source of
authority to issue writs that are not otherwise covered by
statute,” and, “[w]here a statute specifically addresses [a]
particular issue . . . , it is that authority, and not the All
Writs Act, that is controlling.” Carlisle v. United States, 517
U.S. 416, 429 (1996) (internal quotation marks omitted).
Here, Ortiz’s contention that his convictions and
sentence are invalid under Jones v. United States, 526 U.S. 227
(1999), and our subsequent decision in United States v. Promise,
255 F.3d 150 (4th Cir. 2001) (en banc), is exactly the variety
of claim cognizable under § 2255. Contrary to Ortiz’s
suggestion, whether his claim is construed as arising from
statutory or constitutional error is inconsequential. 28 U.S.C.
§ 2255(a). In either event, the fact that Ortiz’s challenge is
procedurally barred due to the restrictions on successive
collateral attacks does not justify his proceeding under the All
Writs Act. See Richter, 510 F.3d at 104; United States v. Holt,
417 F.3d 1172, 1174-75 (11th Cir. 2005); United States v.
Torres, 282 F.3d 1241, 1244-47 (10th Cir. 2002); In re
Davenport, 147 F.3d 605, 608 (7th Cir. 1998).
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We also reject Ortiz’s suggestion that a miscarriage
of justice or violation of the Suspension Clause 1 might permit
his petition for a writ of audita querela. 2 Richter, 510 F.3d at
104. First, Ortiz’s vague assertions regarding the
insufficiency of the evidence supporting his life sentence fail
to indicate that, had the question been properly submitted to
the jury, it would not have found him eligible for that
sentence. See McCleskey v. Zant, 499 U.S. 467, 494 (1991);
Trenkler v. United States, 536 F.3d 85, 99-100 (1st Cir. 2008).
Equally unavailing is Ortiz’s implication that the limits on his
ability to successively attack his convictions
unconstitutionally deny him the benefit of changes in the law,
as none of the authority on which Ortiz relies is retroactively
applicable to cases on collateral review. See Lyons v. Lee, 316
F.3d 528, 535 (4th Cir. 2003); see also Richter, 510 F.3d at
104; Carrington v. United States, 503 F.3d 888, 890 (9th Cir.
2007); In re Vial, 115 F.3d at 1197-98.
1
U.S. Const. art. I, § 9, cl. 2 (“The Privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.”).
2
Although the district court did not specifically address
Ortiz’s claims of a miscarriage of justice, we find no reason to
remand. See Patel v. Napolitano, 706 F.3d 370, 372 (4th Cir.
2013) (reviewing de novo issue district court did not address),
petition for cert. filed, 82 U.S.L.W. 3319 (U.S. Nov. 15, 2013)
(No. 13-606).
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Accordingly, we affirm the district court’s orders
denying the petition for writ of audita querela and Rule 59(e)
motion and deny as moot the Government’s motion to dismiss and
recharacterize Ortiz’s appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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