                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                November 30, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 10-2095
          v.                                           (D. New Mexico)
 OSCAR CHACON,                              (D.C. No. 1:10-CV-00303-JEC-RHS)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On March 31, 2010, Appellant Oscar Luis Chacon filed a pro se pleading

styled “Petition for Writ of Audita Querela.” Relying on United States v. Booker,

Chacon sought a reduction in the thirty-year sentence he received for violating 21


      *
        This order and judgment is not binding precedent except under the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.
U.S.C. § 846, conspiracy to possess with the intent to distribute more than five

kilograms of cocaine. See United States v. Booker, 543 U.S. 220 (2005).

Recognizing he had previously filed a motion pursuant to 28 U.S.C. § 2255, 1

Chacon argued his petition was not a second or successive § 2255 motion but,

instead, a properly filed request for a common law writ of audita querela. See 28

U.S.C. § 1651. The district court acknowledged it lacked jurisdiction to resolve a

second or successive § 2255 motion but assumed, arguendo, that Chacon could

present his Booker claims in a petition for writ of audita querela. The court,

accordingly, addressed the merits of Chacon’s claims and denied relief,

concluding Booker does not apply retroactively to cases on collateral review. The

court dismissed the petition with prejudice and Chacon has appealed that ruling.

Chacon’s request to proceed in forma pauperis on appeal is granted.

      We conclude the district court erred by reaching the merits of Chacon’s

motion. “[A] writ of audita querela is not available to a petitioner when other

remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255.”

United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (quotation


      1
        The district court denied Chacon’s § 2255 motion on July 29, 1997.
Chacon did not seek a certificate of appealability from this court. On July 28,
1999, however, he filed a Rule 60(b) motion in the district court, seeking relief
from the order denying his § 2255 motion. On appeal, this court concluded
Chacon’s Rule 60(b) motion was an attempt to circumvent the restrictions on
filing second or successive § 2255 motions and affirmed the district court’s
dismissal of the motion for lack of jurisdiction.


                                         -2-
omitted). As we have previously held, “the remedy under § 2255 is not

inadequate or ineffective merely because the statute greatly restricts second or

successive motions.” Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir. 2010); see

also Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999) (“[T]he mere fact

[a petitioner] is precluded from filing a second § 2255 petition does not establish

that the remedy in § 2255 is inadequate.”).

      Despite the restrictions on second or successive habeas petitions, Chacon

must raise his Booker claims in a motion filed pursuant to 28 U.S.C. § 2255; he

may not raise the claims in a petition for writ of audita querela. Chacon may only

file a second or successive § 2255 motion if he first obtains authorization from

this court pursuant to 28 U.S.C. § 2255(h). Because Chacon’s petition is an

unauthorized second or successive § 2255 motion, it should have been dismissed

for lack of jurisdiction or transferred to this court. See In re Cline, 531 F.3d

1249, 1251 (10th Cir. 2008). The district court erred by addressing the merits of

the claims after assuming the petition was a properly filed petition for writ of

audita querela. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94

(1998) (“The requirement that jurisdiction be established as a threshold matter

spring[s] from the nature and limits of the judicial power of the United States and

is inflexible and without exception.”); In re Cline, 531 F.3d at 1251 (“A district

court does not have jurisdiction to address the merits of a second or successive

§ 2255 . . . claim until this court has granted the required authorization.”).

                                          -3-
      We remand the matter to the district court with instructions to vacate its

order dated April 14, 2010, dismissing Chacon’s petition with prejudice. The

district court must either dismiss the petition without prejudice or transfer it to

this court if the interests of justice so require. See In re Cline, 531 F.3d at 1252-

53. We note this is Chacon’s second attempt to circumvent the restrictions on

second or successive § 2255 motions. The district court may, in its discretion,

consider the propriety of imposing filing restrictions on Chacon.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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