                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                      UNITED STATES COURT OF APPEALSJanuary 23, 2013
                                                               Elisabeth A. Shumaker
                                   TENTH CIRCUIT                   Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                        No. 12-7064
 v.                                           (D.C. No. 6:99-CR-00009-FHS-1)
                                                        (E.D. Okla.)
 RICKY LEON DORITY,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


      After Ricky Dority was convicted for being a felon in possession of a

firearm, the district court turned to the question of sentencing. Finding that Mr.

Dority had at least three prior violent felony convictions, the court held it was

obliged to apply a fifteen year mandatory sentence under the Armed Career

Criminal Act (ACCA). See 18 U.S.C. § 924(e). Mr. Dority disputed whether one

of the prior convictions the district court cited — a conviction for escaping a


      *
         After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent except under the doctrines of law of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.
penal institution — qualified as a “violent felony” as that term is used in the

ACCA. Mr. Dority emphasized that his escape involved only failing to return to

prison after work release. The district court counted the conviction anyway.

      On appeal, Mr. Dority challenged only his conviction, not the district

court’s sentencing analysis or its application of the ACCA. After the appeal

proved unfruitful, see United States v. Dority, 215 F.3d 1337 (10th Cir. 2000)

(unpublished table decision), Mr. Dority brought a collateral challenge under 28

U.S.C. § 2255. Here he did challenge his sentence, but on different grounds. The

district court once again denied relief and, for its part, this court denied him a

certificate of appealability — and, later, authorization to file a second or

successive § 2255 motion. See United States. v. Dority, 42 F. App’x 301 (10th

Cir. 2002) (unpublished); Dority v. United States, No. 05-7075, Doc. No.

1879285 (10th Cir. Jan. 17, 2006). The Supreme Court denied certiorari in both

instances. See Dority v. United States, 537 U.S. 1143 (2003); Dority v. United

States, 549 U.S. 846 (2006).

      Now Mr. Dority comes before us seeking a writ of audita querela. See

United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (defining the

writ). Mr. Dority says we should grant the writ because after his sentence was

issued the United States Supreme Court held escape convictions like his — for

failing to return from a work release — are not “violent felonies” within the

meaning of the ACCA. See Chambers v. United States, 555 U.S. 122, 127-30

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(2009). The district court has already refused to grant Mr. Dority the writ he

seeks, as have the Eastern District of Texas and the Fifth Circuit when earlier he

asked them to reduce his sentence for the same reason. See Dority v. Roy, 420 F.

App’x 401, 402 (5th Cir. 2011) (unpublished); Dority v. Roy, No. 08-cv-127,

2010 WL 3257788 (E.D. Tex. Aug. 17, 2010). We are obliged by law to reject

his petition as well — and for many reasons.

      In the first place, it is not entirely clear whether the common law writ he

asks us to grant remains a viable avenue for relief under any circumstances. See

Fed. R. Civ. P. 60(e) (“The following are abolished: . . . writs of . . . audita

querela.”); United States v. Beggerly, 524 U.S. 38, 45 (1998).

      Second, even assuming the writ is available for other purposes, § 2255

provides the “exclusive remedy” for federal prisoners seeking to test the validity

of a criminal sentence. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). To

be sure, an exception to this rule exists when the federal prisoner can show an

initial § 2255 motion would have been “inadequate or ineffective to test the

legality of his detention.” 28 U.S.C. § 2255(e); Prost v. Anderson, 636 F.3d 578,

584 (10th Cir. 2011). But that exception has no application here: no one disputes

Mr. Dority could have brought and tested a Chambers-type challenge to his

sentence in his initial § 2255 motion. Indeed, it’s clear he was fully aware of the

argument: he avidly pursued it at sentencing before the district court yet simply

failed to pursue it in his initial § 2255 motion. It cannot be the law that a litigant

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might render § 2255 inadequate or ineffective by his own default. See Prost, 636

F.3d at 584-86.

         Third, to prevail on a writ of audita querela in any event a petitioner would,

at a minimum, have to show a “complete miscarriage of justice.” United States v.

Harris, 391 F. App’x 740, 744 (10th Cir. 2010) (unpublished). This is a showing

Mr. Dority could not make because it’s apparent that, even if we were to

disregard his escape conviction, he has many other violent felony convictions that

could provide the third predicate offense necessary to uphold his ACCA sentence.

To be sure, as Mr. Dority notes, these other Oklahoma felony convictions only

came about as a result of his failure to complete a deferred sentence. But this fact

does not make them any less convictions under Oklahoma or federal law. See

United States v. Hutchinson, 438 F. App’x 681, 684 (10th Cir. 2011)

(unpublished); Platt v. State, 188 P.3d 196, 198-99, ¶¶ 8-10 (Okla. Crim. App.

2008); Watts v. State, 194 P.3d 133, 135-36, ¶¶ 4-6 (Okla. Crim. App. 2008),

modified on other grounds, 197 P.3d 1094 (Okla. Crim. App. 2008).

         Finally, it isn’t even entirely clear under current law whether a non-capital

sentencing error of the sort Mr. Dority alleges (assuming one occurred) could

ever constitute the sort of “manifest injustice” required to warrant relief under a

common law writ. A wrongful conviction might, but it’s less clear a sentencing

error of this sort could. See Reid v. Oklahoma, 101 F.3d 628, 630 (10th Cir.

1996).

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For all these reasons, the judgment of the district court is affirmed.




                                 ENTERED FOR THE COURT



                                 Neil M. Gorsuch
                                 Circuit Judge




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