CLD-211                                                   NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 10-1843
                                ___________

                      UNITED STATES OF AMERICA

                                      v.

                               JULIO OTERO,
                                        Appellant

                 ____________________________________

                On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                      (M.D. Pa. Crim. No. 96-cr-00005)
                   District Judge: Honorable Sylvia Rambo
                 ____________________________________

               Submitted for Possible Summary Action Pursuant
                  to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 June 4, 2010

          Before: BARRY, FISHER and GREENAWAY, Circuit Judges.

                            (Filed: June 25, 2010)

                                  _________

                                  OPINION
                                  _________
PER CURIAM

       Julio Otero, a federal prisoner proceeding pro se, appeals an order of the United

States District Court for the Middle District of Pennsylvania denying his petition for a

writ of audita querela. We will affirm.

       Otero pleaded guilty to engaging in a continuing criminal enterprise in violation of

21 U.S.C. § 848. He received a life sentence. Otero did not appeal the judgment of

conviction and sentence, which was entered in 1998. In 2001, more than three years after

the conviction became final, Otero filed a motion to vacate sentence pursuant to 28

U.S.C. § 2255, claiming, among other things, ineffective assistance of counsel. The

District Court held an evidentiary hearing but did not grant Otero’s request for counsel.

The District Court denied the motion to vacate sentence on the merits.

       We reversed the District Court’s dismissal of Otero’s ineffective assistance

counsel claim because, if indigent, Otero was entitled to representation by counsel at his

evidentiary hearing. United States v. Bendolph, 409 F.3d 155, 160 (3d Cir. 2005) (en

banc). We further decided that the District Court could consider sua sponte on remand

whether Otero’s § 2255 motion was time-barred. On remand, the District Court

appointed Otero counsel and held a hearing to address the timeliness of his § 2255

motion. The District Court granted the Government’s motion to dismiss the § 2255

motion as untimely and, in 2007, we affirmed. See C.A. No. 05-5505.




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       Earlier this year, Otero filed a petition for a writ of audita querela challenging his

conviction and sentence. Otero claimed that the District Court erroneously accepted his

guilty plea and determined his sentence. He also claimed that his counsel failed to object

to sentencing factors and file a direct appeal. Relying on our decision in Massey v.

United States, 581 F.3d 172 (3d Cir. 2009) (per curiam), the District Court denied the

petition. This appeal followed.

       In Massey, a federal prisoner filed a petition for a writ of audita querela seeking to

challenge his sentence under United States v. Booker, 543 U.S. 220 (2005). We held that

the prisoner could not seek relief through a petition for a writ of audita querela because

his claim was cognizable under § 2255. Massey, 581 F.3d at 174. We explained that the

prisoner could not resort to a writ of audita querela based on his inability to satisfy the

requirements for filing a § 2255 motion under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). Id. The same is true here. Otero’s claims are

cognizable under § 2255. Otero may not seek relief through a petition for a writ of audita

querela based on his inability to satisfy AEDPA’s gatekeeping requirements.

       Because this appeal does not raise a substantial question, we will summarily affirm

the District Court’s order.




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