United States v. Aguilar

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-8015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RENE AGUILAR, JR.,
Defendant - Appellant.
No. 05-7099
In Re: RENE AGUILAR, JR.,
Movant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-99-204-MU; CA-04-395-3-2-MU)
Submitted: January 4, 2006 Decided: January 30, 2006
Before WILKINSON, LUTTIG, and TRAXLER, Circuit Judges.
No. 04-8015 dismissed; No. 05-7099 petition denied by unpublished
per curiam opinion.
Rene Aguilar, Jr., Appellant Pro Se. Douglas Scott Broyles,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated cases, Rene Aguilar, Jr., seeks to
appeal the district court’s order denying as untimely his motion
filed under 28 U.S.C. § 2255 (2000), and petitions this court for
writ of audita querela. The order is not appealable unless a
circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1) (2000). A certificate of appealability will
not issue absent “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000). A prisoner
satisfies this standard by demonstrating that reasonable jurists
would find that his constitutional claims are debatable and that
any dispositive procedural rulings by the district court are also
debatable or wrong. See Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v.
Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently
reviewed the record and conclude that Aguilar has not made the
requisite showing.*
Turning to Aguilar’s petition for writ of audita querela,
we find that because § 2255 exists as a vehicle for collaterally
*
We note that Aguilar’s reliance on the Supreme Court’s recent
decision in Crawford v. Washington, 541 U.S. 36 (2004), is
misplaced, as that case is inapplicable to the sentencing claims
Aguilar sought to raise in his motion. See United States v. Roche,
415 F.3d 614, 617 (7th Cir.), cert. denied, 2005 WL 3027861 (U.S.
Nov. 14, 2005) (No. 05-7031); United States v. Martinez, 413 F.3d
239, 242 (2d Cir. 2005).
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attacking a conviction or sentence, the use of an extraordinary
writ for the same purpose is inappropriate.
Accordingly, in appeal number 04-8015, we deny a
certificate of appealability and dismiss the appeal. In appeal
number 05-7099, we grant the application to proceed on appeal in
forma pauperis, but deny the petition for writ of audita querela.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
04-8015 DISMISSED
05-7099 PETITION DENIED
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