UNITED S'I`ATES DISTRICT COURT F l L E D
FOR THE DISTRICT OF COLUMBlA

JUL 2 4 2009
NANcv MAYER wmmuc

) u.s. oosimcrcoiicir~'c"m
UNITED STATES OF AMERICA, )
)

v. ) Cr. No. 95-0298 (TFH)
)
CLIFFORD BOGLE, )
)
Defendant. )
)
MEMORANDUM OPINION

Pending before the Court is defendant Clifford Bogle’s pro se Petition for Writ of Audita
Querela. In response, the government contends that Bogle’s motion, although styled a petition
for a writ of audita querela, should be treated as a motion pursuant to 28 U.S.C. § 2255.
Because Bogle has already filed three § 2255 motions, the government moves to transfer the
instant motion to the United States Court of Appeals for the District of Columbia Circuit for
determination whether to permit Bogle a successive § 2255 motion. For the reasons explained
below, the Court will grant the government’s motion.

I. FACTUAL AND PROCEDURAL HISTORY

Following an eight-day trial in 1996, a jury convicted Bogle of second degree murder,
possession of a firearm during a crime of violence, assault on a federal officer, and using a
firearm during a crime of violence. Two of these convictions were based on charges under the
D.C. Code rather than federal criminal statutes. The Hon. Norrna Holloway Johnson sentenced
Bogle to an aggregate of thirty-three years to life imprisonment. The convictions were affirmed

on appeal in l997. Between February 1999 and May 2000, Bogle filed three motions to vacate,

set aside, or correct sentence pursuant to 28 U.S.C. § 2255. See Docket. Nos. 55, 6l, 7l. The
first two § 2255 motions were denied by Chief Judge Johnson. As to Bogle’s third motion, the
United States Court of Appeals for the District of Columbia Circuit denied him leave to file a
successive § 2255 motion, but allowed him to file a supplement, which this Court denied on
january 26, 2009. Bogle filed the instant motion on October 4, 2007, and the Government filed
its response on February 27, 2009.
II. ANALYSIS

"The common law writ of audita querela permitted a defendant to obtain relief against a
judgment or execution because of some defense or discharge arising subsequent to the rendition
of the judgment." United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir. 1990) (internal quotation
omitted). lt is unclear whether audita querela survives in federal criminal practice. Id. at 429
(stating that Court of Appeals does not "definitively resolve the issue of whether the writ of
audita querela ever supplies a basis for vacating a federal criminal conviction."). There are
circumstances, however, in which it is clear that audita querela does not afford relief:

The Supreme Court’s decision in United States v. Morgan, 346 U.S. 502 (1954),

makes clear that a federal court can vacate a criminal conviction pursuant to the

common law writ of audita querela only if the writ permits a defendant to raise a

legal objection not cognizable under existing federal postconviction remedies.
Ayala, 894 F.2d at 430. In Ayala, the D.C. Circuit affirmed the district court’s denial of the
defendant’s audita querela motion "because [the defendant] attacks his conviction on grounds
that could properly be raised in a section 2255 proceeding." Id.

As in Ayala, Bogle’s petition for a writ of audita querela presents a challenge to his

conviction that is properly cognizable under § 2255. Bogle claims that his sentencing was

unlawful because the sentencing judge, rather than a jury, "found a barrage of facts that
influenced the sentences imposed under the D.C. Code." Def.’s Mot. at l; see also id. at 4-7.
Bogle argues that the Supreme Court’s later sentencing jurisprudence, in particular Cunningham
v. California, 549 U.S. 270 (2007), invalidates the D.C. Code’s sentencing scheme, wherein he
asserts that "the ‘aggravating factors’ found by Judge Johnson increased his sentence from a
maximum of twenty years to life in prison." Def.’s Mot. at 7.

While Bogle attempts to show otherwise, his claim "could properly be raised in a section
2255 proceeding." Ayala, 894 F.2d at 430. Seeking to circumvent the strictures of Ayala, Bogle
argues that the writ of audita querela is an appropriate gap-filling remedy in his case because
"the D.C. Codes are not cognizable under section 28 U.S.C. § 2255." Def.’s Mot. at 3. In
Bogle’s view, § 2255 can provide relief only for his federal law offenses. Id.

Bogle is wrong. Section 2255 allows a defendant to "move the court which imposed [his]
sentence to vacate, set aside or correct the sentence" on the grounds that "the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255. The substance
of Bogle’s claim is that the Sixth Amendment, as interpreted in Cunningham and other recent
Supreme Court cases, proscribes the method in which his sentence was increased under the D.C.
Code. This constitutional challenge of an allegedly excessive sentence-albeit a sentence under
the D.C. Code rather than federal law_falls squarely within the scope of § 2255.

Giving precedence to the substance rather than the caption, see United States v. Ll0yd,

398 F.3d 978, 979-80 (7th Cir. 2005), the Court will treat Bogle’s pleading as a motion pursuant

to § 2255.‘ Cf Torres-Montalvo v. Dep’t ofJustice, 1999 WL 825533, at *l (D.C. Cir. Sept. 30,
1999) (per curiam order) ("The petition for review is a garden variety § 2255 motion collaterally
attacking petitioner’s convictions and sentences, and he may not escape the restrictions on filing
second § 2255 motions by captioning it otherwise."). Due to Bogle’s three prior § 2255 motions,
the court must follow the protocol for a successive motion. A district court lacks jurisdiction to
entertain a "second or successive" (in Bogle’s case, a fourth) § 2255 motion unless the court of
appeals first authorizes the motion. See 28 U.S.C. § 2255 ("A second or successive motion must
be certified as provided in section 2244 by a panel of the appropriate court of appeals . . . ."); 28
U.S.C. § 2244(b)(3)(A) ("Before a second or successive application permitted by this section is
filed in the district court, the applicant shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application."). Accordingly, the Court will transfer
Bogle’s successive motion to the Court of Appeals for a determination whether to permit it.

A corresponding Order accompanies this Memorandum Opinion.

July l ‘/ , 2009

Thomas F. Ho
United States Disg_n_`i:i.]l e

‘ A court cannot recharacterize a pro se motion as an initial § 2255 motion without first
notifying the movant and allowing the movant to withdraw or amend the pleading. See Castr0 v.
United States, 540 U.S. 375, 383 (2003). No such requirement applies, however, for a second or
successive § 2255 motion. See Lloyd, 398 F.3d at 980.

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