           Case: 17-10725    Date Filed: 11/15/2017   Page: 1 of 4


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10725
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:16-cv-25316-DMM



PAULINO GRANDA,

                                                            Plaintiff-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                           Defendant-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (November 15, 2017)



Before TJOFLAT, NEWSOM and BLACK, Circuit Judges.

PER CURIAM:
                Case: 17-10725        Date Filed: 11/15/2017       Page: 2 of 4


       Paulino Granda, a federal prisoner proceeding pro se, appeals the district

court’s denial of his petition for a writ of audita querela. Granda contends the

district court’s refusal to review his petition was a violation of the Suspension

Clause. Granda also asserts he had no other avenue for relief for his claim

regarding the constitutionality of his sentence because his earlier 28 U.S.C. § 2255

motion to vacate had been dismissed as time-barred. After review, 1 we affirm.

        The All Writs Act states “[t]he Supreme Court and all courts established by

Act of Congress 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). When a statute specifically addresses the particular issue at

hand, it is that authority, and not the All Writs Act, that controls. Carlisle v.

United States, 517 U.S. 416, 429 (1996). In the criminal context, “federal courts

may properly fill the interstices of the federal postconviction remedial framework

through remedies available at common law.” United States v. Holt, 417 F.3d 1172,

1175 (11th Cir. 2005) (quotations omitted).

       The writ of audita querela “was an ancient writ used to attack the

enforcement of a judgment after it was rendered” and was abolished in the civil

context by Federal Rule of Civil Procedure 60(b), but remains available in some


       1
           “We review de novo the question of whether a prisoner may challenge his sentence by
filing a petition for a writ of audita querela.” United States v. Holt, 417 F.3d 1172, 1174 (11th
Cir. 2005).
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criminal contexts. See id. at 1174. A writ of audita querela may not be granted

when relief is cognizable under § 2255. Id. at 1175. When a prisoner attacks his

sentence “as violating the United States Constitution, the proper avenue of relief is

§ 2255.” Id. This rule applies even when a prisoner’s only remaining remedy is to

seek leave to file a successive or second § 2255 motion because his original § 2255

motion has already been denied. See id. at 1174-75. In order to file a second or

successive § 2255 motion to vacate, a prisoner must first obtain our leave to file

and must allege either newly discovered evidence or “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 district court did not err in denying Granda’s petition for a writ of

audita querela. Granda alleged several claims that the enhancement to his

sentence was unconstitutional. As claims challenging the constitutionality of a

sentence are cognizable under § 2255, Granda could not obtain a writ of audita

querela to pursue them. See Holt, 417 F.3d at 1175; Carlisle, 517 U.S. at 429.

Moreover, the district court properly noted if it construed his petition as a § 2255

motion, then it would lack jurisdiction to consider it because Granda had not

obtained leave to file a second or successive § 2255 motion. See Farris v. United

States, 333 F.3d 1211, 1216 (11th Cir. 2003) (explaining the district court lacks




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jurisdiction to consider a second or successive habeas petition without the

authorization of the appropriate court of appeals); 28 U.S.C. § 2255(h).

      The district court also did not violate the Suspension Clause when it denied

Granda’s petition for a writ of audita querela. The inability of a prisoner to file a

second or successive § 2255 motion is not a violation of the Suspension Clause.

See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076, 1095

(11th Cir.) (en banc), petition for cert. filed, (U.S. Jul. 12, 2017) (No. 17-85)

(stating, in the context of the § 2255 saving clause, the Suspension Clause is not

violated when “a prisoner cannot file a successive collateral attack”). The district

court did not err in denying Granda’s petition for a writ of audita querela because

his claims were cognizable under § 2255, even though his initial § 2255 motion

had already been denied. See Holt, 417 F.3d at 1174-75.

      AFFIRMED.




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