HLD-155 (June 2010)                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                   No. 10-1988
                                   ___________

                        UNITED STATES OF AMERICA

                                         v.

                            THOMAS D. PRICE,
                                             Appellant
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                      (D.C. Crim. No. 2:94-cr-00221-004)
                        District Judge: Honorable Joy Flowers Conti
                  ____________________________________

                Submitted for Possible Summary Action Pursuant to
                     Third Circuit LAR 27.4 and I.O.P. 10.6
                                   June 30, 2010
         Before: McKEE, Chief Judge, SCIRICA and WEIS, Circuit Judges

                           (Opinion filed: July 27, 2010)

                                    _________

                                     OPINION
                                    _________


PER CURIAM.

           Thomas Price, a federal prisoner proceeding pro se, appeals from the



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District Court’s order denying his petition for a writ of audita querela. Because the

appeal does not present a substantial question, we will summarily affirm.

                                              I.

              In 1995, a federal jury found Price guilty of armed bank robbery and using a

firearm during and in relation to that crime. The District Court determined that Price

qualified as a career offender under the United States Sentencing Guidelines and

sentenced him to 322 months’ imprisonment. We affirmed the District Court’s judgment

on direct appeal. See United States v. Price, 76 F.3d 526 (3d Cir. 1996).

              In 2005, Price filed two motions challenging his conviction and sentence.

The District Court, construing those filings as, inter alia, a motion to vacate his sentence

pursuant to 28 U.S.C. § 2255, denied the motion as untimely.1 Price did not appeal that

decision.

              In November 2008, Price moved the District Court to reduce his sentence

pursuant to 18 U.S.C. § 3582(c)(2) and § 4B1.1 of the Guidelines. In June 2009, the

District Court denied that motion on the merits. A few weeks later, he filed a petition for

a writ of audita querela in the District Court. He claimed that the court had erred in

finding that he was a career offender, and argued that he “is entitled to relief from the

sentence imposed under the series of sentencing cases culminating in the Supreme

Court’s decision in [United States v. Booker, 543 U.S. 220 (2005)].” On March 25, 2010,


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                  The court determined that Price’s claims also failed on the merits.

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the court denied the petition, concluding that Price “is not entitled to post-conviction

relief by way of a writ of audita querela.” (Dist. Ct. Mem. Order at 4.) Price now seeks

review of the court’s March 25, 2010 order.2

                                              II.

              This case is controlled by our decision in Massey v. United States, 581 F.3d

172 (3d Cir. 2009) (per curiam). In Massey, a federal prisoner filed a petition for a writ

of audita querela seeking to collaterally attack his sentence under Booker. See id. at 173-

74. In affirming the district court’s decision denying the petition, we explained that a §

2255 motion “is the means to collaterally challenge a federal conviction or sentence,” and

that “Massey may not seek relief via a petition for a writ of audita querela because his

claim is cognizable under § 2255.” Id. at 174.

              Price’s case mirrors Massey, for he sought to raise collateral challenges to

his sentence that are cognizable under § 2255. The proper vehicle to raise those claims,

therefore, was a § 2255 motion, not a petition for a writ of audita querela. That Price had

previously filed a § 2255 motion – and therefore was barred from filing a second or

successive § 2255 motion without our permission, see 28 U.S.C. §§ 2255(h) and

2244(b)(3)(A) – does not change matters. See Massey, 581 F.3d at 174. Accordingly, the

District Court did not err in denying Price’s petition for a writ of audita querela.




              2
                  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                               3
             Because this appeal does not present a substantial question, we will

summarily affirm the District Court’s judgment. See 3d Cir. LAR 27.4; 3d Cir. I.O.P.

10.6.




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