                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-15-2006

USA v. Hannah
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4863




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BPS-148                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 05-4863


                            UNITED STATES OF AMERICA

                                              v.

                                  GARRETT HANNAH,

                                                   Appellant


                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                           (M.D. Pa. Crim. No. 96-cr-00262)
                       District Judge: Honorable Edwin M. Kosik


Submitted For a Determination of Whether a Certificate of Appealability is Necessary or
    for Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                 February 24, 2006

            Before: RENDELL, AMBRO and GREENBERG, Circuit Judges

                                  (Filed March 15, 2006)


                                         OPINION




PER CURIAM

       Garrett Hannah appeals pro se from the order of the United States District Court

for the Middle District of Pennsylvania denying his petition for a writ of audita querela.
In 1997, Hannah was convicted by a jury of one count of possession of cocaine with

intent to distribute in violation of 21 U.S.C. § 841(a). United States v. Hannah, No. 96-

cr-00262 (M.D. Pa. 1997). Hannah was sentenced to 210 months’ imprisonment. We

affirmed. See United States v. Hannah, No. 97-7506 (3d Cir. July 14, 1998). In 1999,

Hannah filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in the District

Court. After that motion was denied, Hannah appealed. We denied a certificate of

appealability.

       On October 4, 2005, Hannah filed in the District Court a document titled “Writ of

Error Audita Querela Under the All Writs Act,” in which he argued that his sentence was

invalid because it was based on a 16-point enhancement derived from facts that were not

found by the jury, in violation of the rule announced in United States v. Booker, 125 S.Ct.

738 (2005). Hannah requested either a new trial or a new sentence. The District Court

held that Hannah’s Booker claim was appropriately brought via 28 U.S.C. § 2255, not via

a petition for writ of audita querela. Because Hannah had not obtained this court’s

authorization to file a second or successive § 2255 motion, see 28 U.S.C.

§ 2244(b)(3)(A), the District Court held that it could not—in any event—proceed under

§ 2255. It denied Hannah’s petition. Hannah filed a timely notice of appeal and has filed

a statement opposing summary action.

       We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291. After a careful

review of the record, we conclude that the appeal presents “no substantial question” under



                                             2
Third Cir. LAR 27.4 and I.O.P. 10.6. We will, therefore, summarily affirm the District

Court’s judgment.1

       We have held that Booker is not retroactively applicable to cases on collateral

review. See Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005); In re Olopade, 403 F.3d

159 (3d Cir. 2005) (holding that Booker is not a basis for authorizing a second or

successive § 2255 motion). Apparently aware of these holdings, Hannah seeks to raise a

Booker challenge by employing the common law writ of audita querela.

       In support of his argument, Hannah cites to United States v. Morgan, 346 U.S.

502, 510-11 (1954), in which the Supreme Court held that § 2255 did not “encompass the

entire field of post-conviction relief” for federal prisoners. Morgan has come to stand for

the proposition that common law writs such as coram nobis and audita querela can be

used to the extent that they “fill in the gaps” in post-conviction remedies. United States v.

Valdez-Pacheco, 237 F.3d 1077, 1079 (9 th Cir. 2001); see also Obado v. N.J., 328 F.3d




       1
         We understand the District Court to have denied Hannah audita querela relief, not
to have actually recharacterized Hannah’s pleading as a § 2255 motion and then denied
relief. If the District Court had denied Hannah relief pursuant to § 2255, he would need a
certificate of appealability to proceed in this court. 28 U.S.C. § 2253(c)(1)(B). To the
extent, if any, that the District Court actually did recharacterize Hannah’s pleading, we
DENY him a certificate of appealability. See Robinson v. Johnson, 313 F.3d 128, 139
(3d Cir. 2003) (noting that a District Court may not entertain a second or successive
habeas petition when this court has not issued the required certification). We note, too,
that although a pleading such as Hannah’s should, in certain circumstances, be
recharacterized only after issuance of notice to the filer, such notice is not necessary
when, as here, the § 2255 motion would be second or successive. See Castro v. United
States, 540 U.S. 375, 383 (2003); United States v. Torres, 282 F.3d 1241, 1246 (10th Cir.
2002).

                                             3
716, 718 (3d Cir. 2003). Hannah argues that because Booker is not retroactively

applicable to cases on collateral review, this creates a “gap” in the available post-

conviction remedies which justifies his use of the writ.

       We disagree. Section 2255 is the presumptive means for a federal prisoner to

challenge his sentence or conviction. Davis v. United States, 417 U.S. 333, 343 (1974).

We have held that a federal prisoner can seek collateral relief via habeas corpus under 28

U.S.C. § 2241 in the rare situation where § 2255's scope or procedure makes it

“inadequate or ineffective” to challenge a conviction or sentence. See Cradle v. United

States ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002) (per curiam). However, a previous

denial of § 2255 relief does not render § 2255 inadequate or ineffective. See id.

       Similarly, Hannah cannot use audita querela in order to evade the AEDPA’s

stringent requirements for filing second or successive § 2255 motions. See Valdez-

Pacheco, 237 F.3d at 1080. See also United States v. Kimberlin, 675 F.2d 866, 869 (7 th

Cir. 1982). Hannah’s claim is cognizable under § 2255; therefore, there is no “gap” in

post-conviction remedies. See Valdez-Pacheco, 237 F.3d at 1080. The fact that Booker

cannot be applied retroactively in his case does not create such a gap. See Cradle, 290

F.3d at 538 (“[i]t is the inefficacy of the remedy, not the personal inability to use it, that is

determinative”).

       For these reasons, we agree with the District Court’s refusal to entertain Hannah’s

petition. We will, therefore, summarily affirm the District Court’s judgment.




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