BLD-296                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ____________

                                   No. 12-2348
                                  ____________

                        UNITED STATES OF AMERICA


                                        v.

                                DAVID CORREA,
                                   Appellant

                     __________________________________

                  On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                           (D.C. Crim. No. 89-cr-00163)
                         District Judge: Arthur J. Schwab
                    __________________________________

           Submitted on a Motion for a Certificate of Appealability and for
    Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                               September 27, 2012

           Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

                         (Opinion filed: October 9, 2012)



                                  ____________

                                    OPINION
                                  ____________
PER CURIAM

        Appellant David Correa, a federal prisoner, appeals from an order of the District

Court denying his petition for writ of audita querela. For the reasons that follow, we will

summarily affirm.

        Correa was convicted following a jury trial of distribution of controlled

substances, unlawful possession of hand grenades and other related federal offenses. He

was sentenced on May 29, 1992 in the United States District Court for the Western

District of Pennsylvania to a term of life imprisonment and other concurrent sentences.

We affirmed the judgment of conviction and sentence on July 12, 1993, see United States

v. Correa, 5 F.3d 1491 (3d Cir. 1993) (table), and the U.S. Supreme Court thereafter

denied his petition for writ of certiorari. On July 24, 1997, Correa filed a motion to

vacate sentence, 28 U.S.C. § 2255, raising numerous grounds for relief. The District

Court denied the section 2255 motion on the merits, and we denied Correa’s request for a

certificate of appealability on August 13, 1999 in an appeal docketed at C.A. No. 98-

3271.

        Since that date, Correa has filed unsuccessful applications for leave to file a

second or successive section 2255 motion, a petition for writ of error coram nobis, and

motions for a reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2). We most

recently denied another application to file a second or successive section 2255 motion in

In re: Correa, C.A. No. 11-2216.




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       At issue in the instant appeal, Correa filed a petition for writ of audita querela

under the All Writs Act, 28 U.S.C. § 1651, in the sentencing court on March 29, 2012.

Correa argued that he should be afforded a new sentencing hearing under United States v.

Booker, 543 U.S. 220 (2005). In an order entered on April 17, 2012, the petition was

denied by the United States District Judge now assigned to Correa’s case. The court

reasoned that our decision in Massey v. United States, 581 F.3d 172 (3d Cir. 2009),

barred consideration of Correa’s petition, and, even if it did not, he could not prevail

because Booker does not apply retroactively to cases on collateral review, see Lloyd v.

United States, 407 F.3d 608 (3d Cir. 2005); United States v. Swinton, 333 F.3d 481 (3d

Cir. 2003). Correa’s motion for reconsideration was denied by the District Court in an

order entered on April 30, 2012.

       Correa appeals, and we note that his Notice of Appeal includes an application for a

certificate of appealability, which we will consider. We have jurisdiction under 28

U.S.C. § 1291. Correa argues that our decision in Massey does not preclude

consideration of the issue of whether Booker is retroactive to cases on collateral review,

and does not prevent consideration of equal protection challenge to a disparity in

sentences. Correa asserts that his sentence was 80 years greater than that of his

codefendants, and that a claim of such disparity is cognizable in a petition for writ of

audita querela.

       After the appeal was docketed, our Clerk advised the parties that we might act

summarily to dispose of the appeal under Third Cir. LAR 27.4 and I.O.P. 10.6. Correa

then submitted a summary action response, reiterating the Booker issue argued in his

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application for a certificate of appealability. Under Third Circuit LAR 27.4 and I.O.P.

10.6, we may summarily dispose of an appeal when it clearly appears that no substantial

question is presented by the appeal.

       In Massey, a federal prisoner, who could not satisfy the gatekeeping requirements

for filing a second or successive section 2255 motion, challenged his lengthy drug

trafficking sentence under the All Writs Act. Noting that the writ of audita querela “is

available in criminal cases to the extent that it fills in gaps in the current system of post-

conviction relief,” id. at 174, we held that motion to vacate sentence pursuant to 28

U.S.C. § 2255 is a satisfactory means for collaterally challenging a federal conviction or

sentence. A petitioner may not seek relief through a petition for a writ of audita querela

on the basis of his inability to satisfy the requirements, see 28 U.S.C. § 2255(h), for filing

a second or successive motion to vacate sentence.

       Accordingly, as explained by the District Court, Massey bars consideration of

Correa’s petition for audita querela. His claims that his sentence is unconstitutional and

disproportionately high are of the type that can be raised on direct appeal. There are no

gaps in the current system of post-conviction relief with respect to these claims.

Moreover, Booker, which held that the mandatory federal sentencing Guidelines deprived

federal defendants of their Sixth Amendment right to a jury trial, is not retroactive to

cases on collateral review, Lloyd, 407 F.3d at 616. The student-written comment on

which Correa relies, see Nicholas J. Eichenseer, Comment, Reasonable Doubt in the

Rear-View Mirror: The Case for Blakely-Booker Retroactivity in the Federal System,

2005 Wis. L. Rev. 1137 (2005), argues only that Booker should be retroactive to cases on

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collateral review (because the retroactivity question should focus on a prisoner’s due

process rights), not that it is.

       For the foregoing reasons, we will summarily affirm the order of the District Court

denying Correa’s petition for writ of audita querela, and deny his application for a

certificate of appealability.




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