                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 26, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 JAMES DAVID THORNBRUGH,

              Petitioner-Appellant,                       No.10-5164
 v.                                             (D.C. No. CV-89-00067-CVE)
                                                       (N.D. of Okla.)
 UNITED STATES OF AMERICA,

              Respondent-Appellee.


                                      ORDER


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. *


      James Thornbrugh, a federal prisoner proceeding pro se, 1 appeals the

district court’s denial of his petition for writs of coram nobis and audita querela.

Having already filed successive habeas petitions challenging his sentence,

Thornbrugh now seeks to challenge the validity of his sentence by seeking

jurisdiction under the All Writs Act, 28 U.S.C. § 1651.




      *
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
        Because Thornbrugh proceeds pro se, we construe his pleadings liberally.
See Ledbetter v. City of Topeka Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
      We construe Thornbrugh’s notice of appeal and appellate briefs as an

implied application for leave to file a successive petition for a writ of habeas

corpus under 28 U.S.C. § 2255, and we DENY authorization.

                                   I. Background

      In 1989, Thornbrugh was convicted of three counts of armed bank robbery,

under 18 U.S.C. §§ 2113(a) and (b), and three counts of using and carrying a

firearm during and in relation to a crime of violence, under 18 U.S.C. § 924(c).

The district court sentenced him to 543 months’ imprisonment, and he has been

serving time ever since.

      Over the next two decades, Thornbrugh launched a series of challenges to

his sentence. On direct appeal, we initially affirmed the district court’s rulings,

but we then reversed sitting en banc. United States v. Thornbrugh, 962 F.2d 1438

(10th Cir. 1992); United States v. Abreu, 962 F.2d 1447 (10th Cir. 1992) (en

banc). We held that enhanced sentences for second or subsequent convictions

under § 924(c) are only appropriate where the second offense is committed after a

judgment of conviction on the prior § 924(c) offense. Abreu, 962 F.2d at

1449–55. On remand, the district court resentenced Thornbrugh to 442 months’

imprisonment. Soon thereafter, however, the Supreme Court considered the same

issue and reached the opposite conclusion. The Court held that § 924(c) does not

require that a defendant’s previous sentence become final before he can be subject




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to an enhanced sentence for subsequent convictions. Deal v. United States, 508

U.S. 129 (1993).

      The Supreme Court subsequently vacated our en banc decision and

remanded in light of Deal. United States v. Abreu, 508 U.S. 935 (1993). On

remand, we again sat en banc and affirmed the reasoning behind Thornbrugh’s

original, enhanced sentence; and in a separate opinion, we vacated Thornbrugh’s

442-month sentence, ruled that the district court’s initial downward departure was

predicated on an incorrect application of the United States Sentencing Guidelines

(USSG), and remanded for resentencing. United States v. Abreu, 997 F.2d 825

(10th Cir. 1993) (en banc); United States v. Thornbrugh, 7 F.3d 1471 (10th Cir.

1993); United States v. Thornbrugh, No. 92-5145, 1993 WL 413668 (10th Cir.

Oct. 18, 1993).

      On remand, consistent with our instructions, the district court sentenced

Thornbrugh to 610 months’ imprisonment. Thornbrugh appealed this sentence,

and we affirmed. United States v. Thornbrugh, No. 94-5118, 1995 WL 216924

(10th Cir. Apr. 12, 1995). Thornbrugh then sought collateral relief via a § 2255

motion, but the district court denied him relief and we denied him a certificate of

appealability. United States v. Thornbrugh, No. 98-5146, 1999 WL 716885 (10th

Cir. Sept. 15, 1999). Thereafter, we twice denied Thornbrugh permission to file a

second or successive § 2255 motion.




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      In October 2010, Thornbrugh again sought collateral relief in the district

court—this time via a motion seeking writs of coram nobis and audita querela,

under the All Writs Act, 28 U.S.C. § 1651. In his motion, Thornbrugh argued the

original sentencing judge lacked authority to enhance his sentence under § 924(c),

and he also sought relief under United States v. Booker, 543 U.S. 220 (2005).

The district court appropriately found Thornbrugh’s motion was a habeas petition

in disguise, and that he simply restated claims that were previously considered

and rejected on direct and collateral review.

      Accordingly, the district court denied Thornbrugh’s motion, and he now

appeals. We have jurisdiction under 28 U.S.C. § 1291, because Thornbrugh

appeals from a final judgment.

                                   II. Discussion

      Thornbrugh’s motion seeking writs of coram nobis and audita querela lacks

merit, and he is not entitled to relief under the All Writs Act. Moreover, even if

we construe Thornbrugh’s appellate materials as an implied application for

permission to file a successive § 2255 motion, he has not presented any new facts

or rules of constitutional law, as required by § 2255(h).

      Common law writs, such as the writs of coram nobis and audita querela, are

extraordinary remedies that are appropriate only in compelling circumstances.

Such compelling circumstances are not present here. Because Thornbrugh is

currently incarcerated, he may not rely on the writs of coram nobis and audita

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querela to challenge his sentence. As we have repeatedly held, a “prisoner may

not challenge a sentence or conviction for which he is currently in custody

through a writ of coram nobis.” United States v. Torres, 282 F.3d 1241, 1245

(10th Cir. 2002). “Similarly, 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.” Id. Accordingly, Thornbrugh cannot attack the validity of his

sentence under the writs of coram nobis and audita querela when other remedies

are available to him. His exclusive remedy to challenge the validity of his

sentence is provided under § 2255, unless he can show that remedy would be

inadequate or ineffective. See § 2255(e).

      The remedy provided by § 2255 is neither inadequate nor ineffective to test

Thornbrugh’s sentence. The fact that he must surmount procedural hurdles to

bring a successive § 2255 petition does not make the § 2255 remedy, itself,

inadequate or ineffective. See Sines v. Wilner, 609 F.3d 1070, 1073 (10th Cir.

2010) (“[T]he remedy under § 2255 is not inadequate or ineffective merely

because the statute greatly restricts second or successive motions.”); see also

Gilbert v. United States, — F.3d —, No. 09-12513, 2011 WL 1885674, at *3

(11th Cir. May 19, 2011). Accordingly, Thornbrugh must raise his claims under

§ 2255 and not through a petition for writs of coram nobis and audita querela.

      To bring a successive § 2255 petition, Thornbrugh must first seek

authorization from this court—something he has already attempted twice, both

                                          -5-
times unsuccessfully. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Thornbrugh cannot

simply invoke an ancient writ, claim it is an independent basis for jurisdiction and

not a § 2255 motion, and escape the statutory requirements established under the

Antiterrorism and Effective Death Penalty Act (AEDPA). See Torres, 282 F.3d at

1246 (“[T]o allow a petitioner to avoid the bar against successive § 2255 petitions

by simply styling a petition under a different name would severely erode the

procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”

(quotations and citations omitted)). Recognizing these legal requirements, the

district court construed Thornbrugh’s motion as a successive § 2255 motion and

properly held that it “lack[ed] jurisdiction to consider [Thornbrugh’s] motion,

because [a] defendant must request permission from the Tenth Circuit to file a

second or successive § 2255.” United States v. Thornbrugh, No. 89-CR-0067, at

*4 (N.D. Okla. Nov. 4, 2010). Because Thornbrugh acknowledged he did not

meet the requirements for a second or successive § 2255 motion, the district court

appropriately declined to transfer the motion to us for authorization.

      On appeal, we construe Thornbrugh’s notice of appeal and appellate briefs

as a request for authorization to file a successive § 2255 petition and now

consider his request. See Torres, 282 F.3d at 1246. After a careful review of the

record, we conclude Thornbrugh has failed to make the prima facie showing

required by § 2255(h) to bring a successive § 2255 petition. His arguments are

not based on either (1) “newly discovered evidence that, if proven and viewed in

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light of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable fact finder would have found [him] guilty

of the offense” or (2) “a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was previously unavailable.”

§ 2255(h).

      Thornbrugh does not identify new evidence that would demonstrate his

innocence or the inappropriateness of his sentence; nor does he point to any new

rule of constitutional law that would affect his sentence or conviction. In his

briefs, Thornbrugh simply disputes our interpretation of § 924(c); contends his

sentence violated the Equal Protection and Due Process Clauses; and argues his

sentence constituted cruel and unusual punishment. These claims lack merit, and

they are unsupported by any new Supreme Court law.

      Thus, Thornbrugh does not meet the criteria to file a second or successive

habeas petition.

                                  III. Conclusion

      For the reasons stated above, the implied application for authorization to

file a successive § 2255 petition is DENIED.

                                               ENTERED FOR THE COURT

                                               Timothy M. Tymkovich
                                               Circuit Judge




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