                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 29, 2013
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                       No. 13-6079
          v.                                    (D.C. No. 5:00-CR-00004-L-2)
 DARRICK JERMAINE LONDON,                              (W.D. of Okla.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit
Judges. **


      Darrick J. London, a federal prisoner, filed a motion to reduce his sentence

under 18 U.S.C. § 3582(c)(2) as well as a petition for a writ of audita querela.

      London was sentenced to life imprisonment after pleading guilty to one

count of conspiracy to distribute crack cocaine. He tried to challenge his

sentence, but, in light of the waiver of appellate rights in his plea agreement, we


      *
         This order and judgment is not binding precedent except under the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.
      **
         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); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
dismissed the appeal for lack of subject matter jurisdiction. See United States v.

London, 30 F. App’x 882, 883 (10th Cir. 2002). London then unsuccessfully tried

to vacate his conviction under 28 U.S.C. § 2255 on the ground his attorney had

misinformed him about his possible sentence. We denied London a certificate of

appealability to appeal the district court’s denial of his § 2255 petition. See

United States v. London, 248 F. App’x 889, 892 (10th Cir. 2007).

      He filed the motions at issue here in district court. The district court

addressed in one order both London’s motion to reduce his sentence and his

petition for a writ of audita querela. The court held that it did not have

jurisdiction to issue relief on either motion. First, the court concluded that for a

sentence to be eligible for reduction, pursuant to 18 U.S.C. § 3582(c)(2), there

must be a possibility that the sentence would actually be reduced. That was not

the case with London. Neither of the Sentencing Guideline amendments for crack

cocaine—which he sought to have applied retroactively to his sentence—would

have altered his total offense level of 45. Accordingly, the court concluded it did

not have jurisdiction over London’s sentence-reduction motion. Second, the

district court found that the writ of audita querela is not available to individuals

like London who are in custody. See United States v. Torres, 282 F.3d 1241,

1245 (10th Cir. 2002). The court then treated the petition as a second or

successive motion under § 2255, and concluded that such a motion was not

warranted under the circumstances.

                                         -2-
      Because London is proceeding pro se, we construe his filings liberally. See

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991). Nevertheless, after

reviewing London’s filings and the record below, we are convinced the district

court’s decision was correct. 1 The motion for a reduction in sentence was without

merit, as London’s guidelines range would have been the same even after

applying the Sentencing Guidelines amendments. See United States v. Sharkey,

543 F.3d 1236, 1238–39 (10th Cir. 2008) (sentence can only be modified if doing

so is consistent with the guidelines policy statements, which prohibit

modifications that “do[] not have the effect of lowering the defendant’s applicable

guideline range”). And London is not entitled to a writ of audita querela because

he is in custody. See Torres, 282 F.3d at 1245. 2



      1
         While the district court dismissed London’s motions for lack of
jurisdiction, there appears to be no jurisdictional barrier to reaching the merits
of—and denying on the merits—London’s motions. See United States v. McGee,
615 F.3d 1287, 1293 (10th Cir. 2010) (affirming denial of a § 3582(c)(2) motion
on ground that holding in United States v. Booker, 543 U.S. 220 (2005), did not
apply to such motions); United States v. Valdez-Pacheco, 237 F.3d 1077, 1080
(9th Cir. 2001) (affirming denial of petition for audita querela on ground that
petitioner’s claims are cognizable in a § 2255 motion). But see United States v.
Trujeque, 100 F.3d 869, 871 (10th Cir. 1996) (remanding denial of § 3582(c)(2)
motion to district court to dismiss for lack of jurisdiction). For the same reasons
articulated in the district court’s order, London’s motions could have been denied
on the merits.
      2
         Even if London were not in custody, a writ of audita querela would likely
not be the appropriate writ, as it is only available for “unanticipated situations
that arise after judgment.” Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir.
2013). A writ of coram nobis is the appropriate writ when a petitioner seeks to
challenge “defects that existed before the judgment.” Id.

                                        -3-
      Even were we to treat London’s petition for a writ of audita querela as a

second or successive motion under § 2255, we conclude he would not be entitled

to relief. To file a second or successive motion, a petitioner must request this

court’s authorization to do so, pointing either to “newly discovered evidence” or

to 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(h)(2). And for a petitioner to avail himself of a new rule, the Supreme

Court must “explicitly hold[] that the rule it announced applies retroactively.”

Bey v. United States, 399 F.3d 1266, 1268 (10th Cir. 2005) (emphasis in original).

London points to a number of recent ineffective-assistance-of-counsel cases. See

Lafler v. Cooper, 132 S. Ct. 1376 (2012); Missouri v. Frye, 132 S. Ct. 1399

(2012); Padilla v. Kentucky, 559 U.S. 356 (2010). Yet these cases either do not

apply retroactively or did not announce a new rule of constitutional law. See

Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013) (holding that Padilla does

not have retroactive effect); In re Graham, 714 F.3d 1181, 1183 (10th Cir. 2013)

(holding that Lafler and Frye did not announce new rules of constitutional law for

purposes of a second or successive motion under § 2255). Accordingly, the

district court did not err in concluding that London could not meet the standard

for a second or successive § 2255 motion.




                                         -4-
      For the foregoing reasons, we AFFIRM the district court’s decision. But

we GRANT the appellant’s motion to proceed in forma pauperis as well as

appellant’s second motion for additional time to file his reply brief, which was

duly considered.

                                                    ENTERED FOR THE COURT

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




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