                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                            May 25, 2010
                       UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                            Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                  No. 09-5125
                                                   (D. Ct. No. 4:99-CR-00012-TCK-1)
 ESTAC L. LOVE,                                                (N.D. Okla.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Judge, TACHA, and O’BRIEN, Circuit Judges.


       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)(2); 10th Cir. R. 34.1(G). The

case is therefore ordered submitted without oral argument.

       Estac L. Love, a federal prisoner proceeding pro se, petitioned the district court for

a writ of audita querela to vacate one of his mandatory consecutive sentences under 18

U.S.C. § 924(c). The district court dismissed Mr. Love’s petition for lack of jurisdiction.

We have jurisdiction under 28 U.S.C. § 1291 and AFFIRM.


       *
        This order and judgment is not binding precedent except under the doctrines of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.
                                   I. BACKGROUND

       Mr. Love was convicted in 1999 of fourteen federal criminal offenses, including

armed robbery, conspiracy, car-jacking, and firearms offenses. The district court

sentenced him to 1,752 months’ imprisonment, of which 1,584 months were for six

firearms convictions under 18 U.S.C. § 924(c). We affirmed Mr. Love’s convictions and

sentence on direct appeal. United States v. Love, No. 00-5042, 2001 WL 1012123 (10th

Cir. Sept. 5, 2001).

       In 2005, Mr. Love sought post-conviction relief by filing a habeas petition under

28 U.S.C. § 2255. The district court denied his habeas petition and Mr. Love did not

appeal. In 2007, Mr. Love again sought post-conviction relief, this time seeking a writ of

coram nobis under the All Writs Act, 28 U.S.C. § 1651. The district court denied that

petition as well, and we affirmed. United States v. Love, No. 07-5126, 2008 WL 110994

(10th Cir. Jan. 10, 2008).

       Mr. Love then filed the petition at issue in this appeal, seeking a writ of audita

querela under the All Writs Act. In his petition, Mr. Love asked the court to vacate his

seven-year mandatory consecutive sentence under § 924(c)(1)(A) because “recent

changes in the consensus of authority [] now establish that the consecutive mandatory

minimum sentence under section 924(c) does not apply when a defendant is subject to a

higher minimum sentence for related firearm offenses.” The district court held that Mr.

Love’s claim was cognizable exclusively under § 2255, and therefore dismissed Mr.




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Love’s petition for lack of jurisdiction.1 Mr. Love now appeals from the dismissal of his

petition.

                                    II. DISCUSSION

       “[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.”

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

“In modern practice, the writ has been supplanted by the more simple and expeditious

motion to vacate or . . . for relief against the judgment, based upon equitable grounds.”

Oliver v. City of Shattuck ex rel. Versluis, 157 F.2d 150, 153 (10th Cir. 1946). Moreover,

“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.” Torres, 282 F.3d at 1245. On

appeal, Mr. Love contends that the district court erred in dismissing his petition because

his case “presents the rare situation when audita querela should be made available to a

criminal defendant.” We disagree.

       In his petition, Mr. Love seeks the modification of his sentence on the basis that

there has been a “fundamental change in the positions of the courts and the government

regarding the statutory interpretation of section 924(c)(1)(A) since the time of Mr. Love’s

original sentencing.” The district court held, and we agree, that assuming audita querela


       1
        The district court also declined to construe Mr. Love’s motion for a writ of audita
querela as a second § 2255 petition and transfer it to this court for authorization. Mr.
Love has not asserted any error with regard to that portion of the district court’s order;
therefore, we do not address it.

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is available to a defendant who seeks to vacate his sentence, § 2255 provides a means for

Mr. Love to pursue this remedy. Mr. Love must therefore bring his claim under § 2255

“unless it is shown to be inadequate or ineffective to test the legality of [his] detention.”

Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963). “[T]he mere fact [that Mr.

Love] is precluded from filing a second § 2255 petition [,however,] does not establish that

the remedy in § 2255 is inadequate.” Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir.

1999).

         Mr. Love argues that § 2255 is inadequate or ineffective because of the “unusual

posture” of his case. He contends that a post-sentencing change in statutory interpretation

has rendered his sentence illegal, and that because “[t]raditional post-conviction relief is

not available at this time” a writ of audita querela provides the only remedy. Traditional

post-conviction relief is only unavailable to Mr. Love, however, because he previously

filed a § 2255 petition. Had Mr. Love not already filed a § 2255 petition, § 2255 would

be a viable means of contesting his sentence. Thus, Mr. Love has failed to show that §

2255 is inadequate or ineffective to test the validity of his sentence, and he cannot avoid

the bar on successive § 2255 petitions “by simply styling [his] petition under a different

name.” Torres, 282 F.3d at 1246. Therefore, the district court properly dismissed Mr.

Love’s petition for a writ of audita querela for lack of jurisdiction.




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                                 III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s dismissal of Mr. Love’s

petition.



                                        ENTERED FOR THE COURT,



                                        Deanell Reece Tacha
                                        Circuit Judge




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