                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 30 2004
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 03-8017
                                                        (Wyoming)
 ALFRED LEE APODACA,                              (D.C. No. 85-CR-77-B)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.



      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); 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        This order and judgment is not binding precedent except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Alfred Lee Apodaca, acting pro se, 1 appeals the district court’s denial of his

petition for writ of audita querela. 2 Exercising jurisdiction under 28 U.S.C. §

1291, we affirm.




      1
       We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
      2
       Apodaca filed his writ under the All Writs Act. “The Supreme Court and
all courts established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). We have previously discussed the
history and continued viability of the writ of audita querela:

      Writs of audita querela and coram nobis “are similar, but not
      identical.” United States v. Reyes, 945 F.2d 862, 863 n. 1 (5th Cir.
      1991). Usually, a writ of coram nobis is used “to attack a judgment
      that was infirm [at the time it issued], for reasons that later came to
      light.” Id. By contrast, a writ of audita querela is used to challenge
      “a judgment that was correct at the time rendered but which is
      rendered infirm by matters which arise after its rendition.” Id. Rule
      60(b) of the Federal Rules of Civil Procedure formally abolished
      both writs. United States v. Beggerly, 524 U.S. 38, 45, 118 S.Ct.
      1862, 141 L.Ed.2d 32 (1998); Fed. R. Civ. P. 60(b) (both stating that
      writs of coram nobis and audita querela were abolished by Rule
      60(b)). However, the Supreme Court held in United States v.
      Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), that the
      writ of coram nobis could still be pursued in the criminal contexts
      under the All Writs Act. At least four of our sister circuits have
      questioned whether audita querela may also be used “to vacate an
      otherwise final criminal conviction” under the All Writs Act, but
      have assumed, “without deciding, that in some set of circumstances
      audita querela might appropriately afford post-conviction relief to a
      criminal defendant.” Reyes, 945 F.2d at 865 (collecting cases).

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

                                         -2-
Background

       In 1985, Apodaca was convicted of, inter alia, engaging in a continuing

criminal enterprise in violation of 21 U.S.C. § 848. On direct appeal, we

affirmed. United States v. Apodaca, 843 F.2d 421 (10th Cir.), cert. denied, 488

U.S. 932 (1988). In 1995, he filed a motion to vacate, set aside or correct his

sentence under 28 U.S.C. § 2255, which the district court denied. We dismissed

his attempted appeal because it was untimely. See proceedings in United States v.

Apodaca, No. 96-8100 (10th Cir.).

      A person is engaged in a continuing criminal enterprise if he violates

certain provisions of federal law and, inter alia, “such violation is a part of a

continuing series of violations . . . .” 21 U.S.C. § 848(c)(2). The Supreme Court

held that “a jury has to agree unanimously about which specific violations make

up the continuing series of violations.” Richardson v. United States, 526 U.S.

813, 815 (1999) (quotation omitted). Based on Richardson, Apodaca filed a

petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District

of Texas. 3 The district court denied relief and the Fifth Circuit affirmed.

Apodaca v. United States, 275 F.3d 1080 (5th Cir. 2001), cert. denied, 535 U.S.

1073 (2002). In 2002, Apodaca filed his petition in the sentencing court for writ




      3
          Apodaca was and remains incarcerated at a federal facility in Texas.

                                          -3-
of audita querela, again seeking relief based on Richardson. 4 The district court

denied relief because: 1) § 2255 provides the exclusive means for testing his

conviction; 2) Apodaca previously filed a § 2255 motion; and therefore, 3)

authorization by a panel of this court is a prerequisite to filing a successive §

2255 petition. 28 U.S.C. § § 2255, 2244(b)(3). This appeal followed. Since only

legal questions are presented, we review de novo. Morris v. Burnett, 319 F.3d

1254, 1268 (10th Cir. 2003), cert. denied, ____ U.S. ____, 124 S.Ct. 284 (2003).

Discussion

      We agree § 2255 provides the exclusive means for Apodaca to test his

conviction in the sentencing court, we construe his notice of appeal and appellate

brief as an implied application under § 2244(b)(3)(A) to proceed with a



      4
       Apodaca also claims he is entitled to relief under the International
Covenant on Civil and Political Rights (ICCPR), ratified by the United States
Senate on September 8, 1992. [Apt. Br. at 26-28] We need not reach the merits
of Apodaca’s argument because

      [I]t is clear that the ICCPR is not binding on the federal courts.
      Courts in the United States are bound to give effect to international
      law and to international agreements, except that a non-self-executing
      agreement will not be given effect as law in the absence of necessary
      authority. When the Senate ratified the ICCPR, it specifically
      declared that the provisions thereof were not self-executing. And,
      since that time, Congress has never enacted implementing legislation
      for the ICCPR.

Hain v. Gibson, 287 F.3d 1224, 1243 (10th Cir. 2002) (quotations and citations
omitted), cert. denied, 537 U.S. 1173 (2003).

                                          -4-
successive § 2255 motion, Torres, 282 F.3d at 1246, and we deny such

authorization. 5

      “[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.” Id. “[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. at 1245 (quotation and citation

omitted). 6 The § 2255 remedy lies “unless it is shown to be inadequate or ineffective

to test the legality of the prisoner's detention.” Williams v. United States, 323 F.2d

672, 673 (10th Cir. 1963), cert. denied sub nom., 377 U.S. 980 (1964). 7 “[T]he mere


      5
        We have cautioned district courts against recharacterizing a petition as a §
2255 motion without the petitioner’s consent because it could be a trap for the
unwary, rendering a subsequent § 2255 motion successive and thus subject to the
statute’s strict gatekeeping language. That concern is not triggered when the
petitioner has previously filed a § 2255 motion. Torres, 282 F.3d at 1245-46.
      6
       In its order denying relief, the district court expressed some doubt that
Torres stands for the proposition that the availability of the § 2255 remedy
precludes a prisoner in custody from petitioning for a writ of audita querela.
[ROA, Vol. 1, Doc. 169 at 4-5] We clarify that it does if the prisoner’s claim
could originally have been embraced by § 2255, even if that claim is now barred
by successive filing restrictions. Once foreclosed, the writ does not rise like a
phoenix to provide an additional avenue for redress simply because Congress
chose to limit the reach of statutory remedies.
      7
        Of course, § 2255 only provides a remedy for a federal prisoner in custody.
“A prisoner in custody under sentence of a court . . . may move the court which
imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. §
2255. We do not decide whether a petition for writ of audita querela would lie to
set aside a conviction when the convicted person is no longer in custody.

                                           -5-
fact” that a petitioner “is precluded from filing a second § 2255 petition does not

establish that the remedy in § 2255 is inadequate.” Caravalho v. Pugh, 177 F.3d

1177, 1179 (10th Cir. 1999). 8 That is precisely Apodaca’s circumstance.

      Because this is a second § 2255 motion, it is barred unless, under 28 U.S.C. §

2244, 9 we certify the petition to contain either newly discovered evidence or “a new

rule of constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255. Since Apodaca

does not allege newly discovered evidence, we consider only the second precondition

and decline to certify. Even though Richardson announced a new rule of substantive

law retroactively applicable to cases on collateral review, at least for purposes of a

first § 2255 motion, United States v. Barajas-Dias, 313 F.3d 1242, 1245 (10th Cir.


      8
        Circumstances where courts have found or suggested the § 2255 remedy is
inadequate or ineffective include instances where the sentencing court is
abolished at the time petitioner seeks relief, Spaulding v. Taylor, 336 F.2d 192,
193 (10th Cir. 1964); where the sentencing court refuses to consider the petition
or unreasonably delays its consideration, Stirone v. Markley, 345 F.2d 473, 475
(7th Cir.), cert. denied, 382 U.S. 829 (1965); where more than one court has
sentenced the petitioner and no single court can accord complete relief, Cohen v.
United States, 593 F.2d 766, 771 n.12 (6th Cir. 1979); and where the gatekeeping
language of § 2255 bars retroactive application of a case that does not state a new
rule of constitutional law, Reyes-Requena v. United States, 243 F.3d 893, 902
n.20 (5th Cir. 2001) (allowing a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2241 on a showing of actual innocence).
      9
        “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.” 28
U.S.C. § 2244(b)(3)(A).

                                           -6-
2002), it was not “made retroactive to cases on collateral review by the Supreme

Court,” 28 U.S.C. § 2255, for purposes of enabling a second or successive § 2255

motion. “[A] new rule is not ‘made retroactive to cases on collateral review’ unless

the Supreme Court holds it to be retroactive.” Tyler v. Cain, 533 U.S. 656, 663

(2001). The § 2255 remedy is not inadequate or ineffective under the circumstances

presented here, Apodaca is simply barred from raising it.

      But all prisoner remedies are not foreclosed because of the limitations on §

2255 relief. A petition for a writ of habeas corpus under § 2241 demonstrating actual

innocence may be an available remedy, 10 as Apodaca well knows; he filed such a

petition stating his Richardson claims in the District Court for the Eastern District of

Texas, where he failed on the merits. The record thus demonstrates that Apodaca has

taken advantage, at least once, of the full panoply of statutory post-conviction

remedies, and we identify no gap in the remedial framework.



      10
         In affirming the district court’s order denying § 2241 relief to Apodaca,
the Fifth Circuit apparently relied on its holding in Reyes-Requena, 243 F.3d 893.
In Reyes-Requena, the court allowed a 28 U.S.C. § 2241 petition alleging actual
innocence under the savings clause of § 2255 to test the retroactive effect of a
Supreme Court decision, rendered after petitioner’s conviction, direct appeal and
first § 2255 motion. Id. at 904. We agree with the reasoning of the Fifth Circuit
in Reyes-Requena that recourse to the § 2241 remedy will be unavailing unless
accompanied by a clear showing of actual innocence. Id. at 903-04. Trial error
does not necessarily equate to actual innocence. See Barajas-Diaz, 313 F.3d at
1248 (distinguishing between legal and actual innocence); Jeffers v. Chandler,
253 F.3d 827, 831 (5th Cir.) (quoting Reyes-Requena), cert. denied, 534 U.S.
1001 (2001).

                                           -7-
      Accordingly, we AFFIRM the district court’s denial of the petition for writ of

audita querela and DENY Mr. Apodaca’s implied motion for an order authorizing the

district court to consider a successive § 2255 motion.



                                      Entered by the Court:

                                      TERRENCE L. O’BRIEN
                                      United States Circuit Judge




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