                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 23, 2009
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                         No. 08-6242
 v.                                            (D.C. Nos. 91-CR-00052-R-1 and
                                                      97-CV-00657-R)
 CHARLES EDWARD MCINTYRE,                               (W.D. Okla.)

       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Charles Edward McIntyre, a federal prisoner appearing pro se, seeks to

appeal the district court’s order denying his motions for a writ of audita querela

under the All Writs Act, 28 U.S.C. § 1651. In 1991, Mr. McIntyre was convicted

of conspiracy to distribute cocaine, 21 U.S.C. § 846; possession with intent to

distribute cocaine, 21 U.S.C. § 841(a)(1); causing interstate travel to facilitate

unlawful activity, 18 U.S.C. § 1952(a)(3); and aiding and abetting, 18 U.S.C. § 2.

1 R. at 23. On direct appeal, we affirmed Mr. McIntyre’s conviction. United

States v. McIntyre, 997 F.2d 687 (10th Cir. 1993). Mr. McIntyre then filed his

first 28 U.S.C. § 2255 motion, which we dismissed after denying Mr. McIntyre’s

application for a certificate of appealability (“COA”). United States v. McIntyre,
172 F.3d 63 (10th Cir. 1999) (unpublished). Mr. McIntyre subsequently filed a

motion for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651,

arguing that his sentence is unconstitutional and citing to Apprendi v. New

Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005). 1

R. at 28-39. The district court concluded that Mr. McIntyre’s exclusive remedy

was a § 2255 motion, and construed his motion as such. 1 Id. at 40-42. The

district court also dismissed the motion for lack of jurisdiction because Mr.

McIntyre did not present any meritorious claims given that Booker does not apply

retroactively and Apprendi does not extend to second or successive habeas

motions. Id.

      Mr. McIntyre now challenges the district court’s denial of his motion for a

writ of audita querela. However, we agree with the district court that § 2255

provides the exclusive means for Mr. McIntyre to test his conviction in the

sentencing court. We have previously stated that “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) (internal quotation marks omitted), and that a petitioner cannot


      1
         We have instructed district courts not to re-characterize a prisoner’s
petition for post-conviction relief as a § 2255 motion without providing notice to
the petitioner. United States v. Kelly, 235 F.3d 1238, 1242 (10th Cir. 2000).
However, that instruction is not applicable when the petitioner has previously
filed a § 2255 motion, as is the case here. United States v. Torres, 282 F.3d 1241,
1245-46 (10th Cir. 2002).

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“avoid the bar against successive § 2255 petitions by simply styling a petition

under a different name,” id. at 1246. See also Caravalho v. Pugh, 177 F.3d 1177,

1179 (10th Cir. 1999) (stating that “the mere fact [a petitioner] is precluded from

filing a second § 2255 petition does not establish that the remedy in § 2255 is

inadequate” and therefore unavailable as a remedy). Accordingly, the district

court had the discretion to dismiss the second § 2255 motion for lack of

jurisdiction, given its determination that it was not in the interest of justice to

transfer the matter to this court. See In re Cline, 531 F.3d 1249, 1252 (10th Cir.

2008) (stating that, when a district court is presented with an unauthorized second

or successive § 2255 claim, it “may transfer the matter to this court if it

determines it is in the interest of justice to do so under [28 U.S.C.] § 1631, or it

may dismiss the motion . . . for lack of jurisdiction”).

      Given the district court’s characterization of his petition, Mr. McIntyre is

required to obtain a certificate of appealability (COA) to proceed on appeal.

United States v. Harper, 545 F.3d 1230, 1233 (10th Cir. 2008). That means he

must demonstrate that jurists of reason would find the district court’s procedural

ruling reasonably debatable. Slack v. McDaniel, 529 U.S. 473, 478 (2000). After

considering his submissions, we conclude that he has not made that showing

because the district court was surely correct in holding that Mr. McIntyre has

failed to meet the standard of § 2255. His contentions are not based on newly

discovered evidence that, “if proven and viewed in light of the evidence as a

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whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found [him] guilty of the offense” or on “a new

rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). The

caselaw cited by Mr. McIntyre—Booker and Apprendi—does not apply

retroactively to final criminal judgments such as his. See United States v.

Bellamy, 411 F.3d 1182, 1184 (10th Cir. 2005) (holding that Booker is not to be

applied retroactively); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.

2002) (holding that Apprendi is not to be applied retroactively).

      We DENY a COA, DENY IFP status, and DISMISS the appeal.



                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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