                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 28, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,                      No. 09-3309
                                              (D.C. No. 2:92-CR-20063-JWL-2)
    v.                                                    (D. Kan.)

    LEALON MULDROW,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.



         Lealon Muldrow is serving a 360-month sentence in federal prison for

possessing crack cocaine with the intent to distribute it in the vicinity of an

elementary school. After losing his direct appeal and multiple habeas petitions

filed under 28 U.S.C. §§ 2255 and 2241, in July 2009, he filed a petition in the

district court seeking a writ of audita querela under the All Writs Act, 28 U.S.C.



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist 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. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1651. The district court denied the petition, concluding that such a writ may

not issue if there is another avenue by which a criminal defendant can challenge

his sentence, and that § 2255 is such an avenue. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

      “[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)

(internal quotation marks omitted). Although the writ has been abolished in civil

cases, we acknowledged in Torres that, at least theoretically, audita querela may

afford post-conviction relief to a criminal defendant. Id.; see also Massey v.

United States, 581 F.3d 172, 174 (3d Cir. 2009) (“[T]he writ is available in

criminal cases to the extent that it fills in gaps in the current system of

post-conviction relief.”). But as the district court correctly noted, “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

(internal quotation marks omitted).

      Mr. Muldrow argues that § 2255 is not adequate in his case because of

the preclusive effect of the second and successive rules combined with the

non-retroactivity of the constitutional rulings upon which he relies. 1 We reject

1
      See, e.g., United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002)
(concluding the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490
                                                                    (continued...)

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this argument. “A prisoner may not circumvent valid congressional limitations on

collateral attacks by asserting that those very limitations create a gap in the

postconviction remedies that must be filled by the common law writs.” United

States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001); see also Massey,

581 F.3d at 174. “Indeed, to allow a petitioner to avoid the bar against successive

§ 2255 petitions by simply styling a petition under a different name would

severely erode the procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3)

and 2255.” Torres, 282 F.3d at 1246. The district court correctly held that

§ 2255 is the means to collaterally challenge a federal sentence even in cases

where preauthorization is required under § 2244(b)(3). Consequently, there is no

gap to fill in the post-conviction remedies so as to justify use of the writ. The

district court’s judgment is therefore AFFIRMED.

      Mr. Muldrow’s request to proceed in forma pauperis is GRANTED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




1
 (...continued)
(2000), does not apply retroactively on collateral review); United States v.
Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) (holding same with respect to rule
announced in United States v. Booker, 543 U.S. 220 (2005)).

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