                                                                          FILED
                             NOT FOR PUBLICATION                           OCT 09 2014

                                                                       MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 12-55221

                Plaintiff - Appellee,            D.C. Nos. 2:07-cv-02613-SVW
                                                           2:95-cr-00165-SVW-3
  v.

DARNELL CROOKSHANK,
                                                 MEMORANDUM*
                Defendant - Appellant.


                     Appeal from the United States District Court
                         for the Central District of California
                     Stephen V. Wilson, District Judge, Presiding

                              Submitted October 7, 2014**
                                 Pasadena, California

Before:         HAWKINS and GRABER, Circuit Judges, and SEDWICK,*** District
                Judge.

       Defendant-Appellant Darnell Crookshank appeals from the district court’s

denial of his petition for a writ of audita querela. Crookshank sought to employ

          *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
          ***
            The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
the writ to attack the life sentences imposed for his 1996 felony drug convictions,

sentences which depended on the existence of two prior felony drug convictions.

Crookshank’s contention was that his 1991 conviction should not be counted as a

felony drug offense because the offense was a “wobbler” under California law and

he was sentenced to less than a year of incarceration.

      Crookshank unsuccessfully appealed the 1996 convictions and sentences.

Subsequently, Crookshank filed a collateral attack against the 1996 judgment

pursuant to 28 U.S.C. § 2241 and two other collateral attacks pursuant to § 2255.

Some years later, in 2010, he filed his petition for a writ of audita querela. The

issue raised in the petition is one which could be raised pursuant to 28 U.S.C.

§ 2255. We have held that, “a federal prisoner may not challenge a conviction or

sentence by way of a petition for a writ of audita querela when that challenge is

cognizable under § 2255.” United States v. Valdez-Pacheco, 237 F.3d 1077, 1080

(9th Cir. 2001) (per curiam). We have also held that the fact that a second or

successive § 2255 motion may be barred pursuant to § 2255(h) does not permit

circumvention of the statute by styling a second or successive motion as a petition

for a writ of audita querela. Id.




                                          2
      Crookshank’s petition is in reality a second or successive motion pursuant to

§ 2255. Crookshank did not obtain the certification required by § 2255. For that

reason, the district court lacked jurisdiction to hear the petition.

      Treating Crookshank’s petition as a request for the certification required by

28 U.S.C. § 2255(h), we deny the request, because he has presented neither “newly

discovered evidence” nor “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable.”

Id.

      This case must be returned to the district court with orders that its judgment

be vacated and the petition dismissed for lack of jurisdiction.

      VACATED and REMANDED. Costs on appeal are awarded to Plaintiff-

Appellee.




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