                                                                          FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  October 6, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 11-7009
          v.                                            (E.D. of Okla.)
 ELVIN CLIFFORD WATKINS,                     (D.C. No. 6:07-CR-00054-RAW-1)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


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


      Elvin Watkins, a federal prisoner proceeding pro se, 1 appeals the district

court’s denial of his petition for a writ of audita querela. Having already filed a

habeas petition challenging his conviction, Watkins now attempts to challenge the




      *
         This order and judgment is not binding precedent except under the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.
      **
         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 Watkins proceeds pro se, we construe his pleadings liberally.
See Ledbetter v. City of Topeka Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
validity of his conviction by seeking jurisdiction under the All Writs Act, 28

U.S.C. § 1651.

      We construe Watkins’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

      Watkins pleaded guilty to possessing marijuana with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The district court

sentenced him to 57 months’ imprisonment followed by 36 months’ supervised

release.

      Watkins filed a direct appeal alleging the district court erred in relying on a

drug laboratory report to estimate the quantity of marijuana he possessed.

Watkins contended he agreed to plead guilty based on a state trooper’s drug-

quantity estimate, which was lower than the lab report and would have resulted in

a lower offense level. We rejected Watkins’s appeal because there was no

evidence the parties had stipulated to the drug quantity in connection with

Watkins’s plea. United States v. Watkins, 297 F. App’x 821, 822–23 (10th Cir.

2008). We also affirmed the district court’s decision to apply an obstruction-of-

justice enhancement to Watkins’s base offense level under the United States

Sentencing Guidelines. Id. at 823–25.




                                         -2-
         Watkins then filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2255, which the district court denied because all issues raised were either

foreclosed by his guilty plea or procedurally barred because he did not assert

them on direct appeal. Following the ruling, Watkins appealed. He asked for a

certificate of appealability (COA) based on some of the same arguments he raised

below and also a new ineffective assistance of counsel allegation. We denied his

request for a COA and held that his ineffective assistance claims were

procedurally defaulted. United States v. Watkins, 366 F. App’x 969 (10th Cir.

2010).

         In December 2010, Watkins again sought collateral relief in the district

court—this time via a motion seeking a writ of audita querela, under the All Writs

Act, 28 U.S.C. § 1651. In his motion, Watkins argued that neither his counsel nor

the Probation Office informed the district court of his heart condition, and that

had the district court been aware, it would have handed down a lesser sentence.

The district court appropriately found Watkins’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 Watkins’s motion, and he now

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

from a final judgment.




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                                  II. Discussion

      Watkins’s motion seeking a writ of audita querela lacks merit, and he is not

entitled to relief under the All Writs Act. Moreover, even if we construe

Watkins’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 writ of audita querela, are extraordinary

remedies that are appropriate only in compelling circumstances. 2 Such

compelling circumstances are not present here. Because Watkins is currently

incarcerated, he may not rely on the writ of audita querela to challenge his

sentence. As we have repeatedly held, “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.

      2
         As we noted recently in United States v. Silva, No. 10-2272, 2011 WL
1880981 (10th Cir. May 18, 2011), the ancient writ of audita querela was
introduced during the reign of King Edward III and was “based on equitable,
rather than common law principles.” Black’s Law Dictionary 141 (8th ed. 2004)
(quoting L.B. Curzon, English Legal History 103 (2d ed. 1979)). “[A] writ of
audita querela is used to challenge a judgment that was correct at the time it was
rendered but which is made infirm by matters that arose after its rendition.”
United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010). The writ of audita
querela was formally abolished by Rule 60 of the Federal Rules of Civil
Procedure. See F ED . R. C IV . P. 60(e). However, in the criminal context, the
Supreme Court has suggested a defendant may file motions under the All Writs
Act. See United States v. Morgan, 346 U.S. 502, 510–11 (1954). In accord with
other circuits, we have assumed, without deciding, a prisoner may seek a writ of
audita querela under the All Writs Act to challenge an otherwise final conviction.
See Miller, 599 F.3d at 487–88 (collecting cases).

                                        -4-
2002). Accordingly, Watkins cannot attack the validity of his sentence under the

writ of 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

Watkins’s sentence. The fact that he must surmount procedural hurdles to bring a

successive § 2255 petition does not make the § 2255 remedy 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, 640 F.3d 1293 (11th Cir. 2011) (en banc). Accordingly, Watkins must

raise his claims under § 2255 and not through a petition for writ of audita querela.

      To bring a successive § 2255 petition, Watkins must first seek authorization

from this court—something he has already attempted unsuccessfully. See

Watkins, 366 F. App’x at 969; see also 28 U.S.C. §§ 2244(b)(3), 2255(h).

Watkins 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.

                                         -5-
§§ 2244(b)(3) and 2255.” (quotations and citations omitted)). Recognizing these

legal requirements, the district court construed Watkins’s motion as a second or

successive § 2255 motion and properly declined to transfer the motion to the

Tenth Circuit. United States v. Watkins, No. CR-07-054, at *3 (D. Okla. Jan. 11,

2011) (Order).

      On appeal, we construe Watkins’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 Watkins 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 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).

      Watkins 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. He alleges

only that his attorney failed to advise the sentencing court that he had a heart

condition, that the probation officer neglected to interview him regarding his


                                          -6-
medical history or include such information in the presentence investigation

report, and that corruption and conflicts of interest tainted his conviction and

sentence. These claims lack factual basis, and the legal basis for them is

unsupported by any new Supreme Court law.

      Thus, Watkins 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. We also DENY Watkins’s motion

for appointment of counsel. Finally, we DENY the government’s motion to

dismiss, because Watkins’s appeal is timely. 3

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Circuit Judge




      3
        Watkins filed his Notice of Appeal 42 days after the district court’s
order. This was timely because the civil rules apply to determine the time to
appeal in § 2255 and audita querela proceedings. See United States v. Pinto,
1 F.3d 1069, 1070 (10th Cir. 1993). This gave Watkins 60 days in which to
appeal. Id.

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