                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 19, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 10-5058
 v.                                           (D.Ct. No. 4:89-CR-00072-TCK-2)
                                                         (N.D. Okla.)
 BILLY G. HARRIS,

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BARRETT, ANDERSON, and BRORBY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist 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.



      Appellant Billy Gene Harris, a pro se litigant and federal inmate, appeals

the district court’s dismissal of his petition for a writ of audita querela pursuant

      *
         This order and judgment is not binding precedent except under the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.
to 28 U.S.C. § 1651. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.



                             I. Procedural Background

      On January 30, 1990, a jury found Mr. Harris guilty of two counts of first

degree murder, under 18 U.S.C. §§ 2, 1111, and 1153, for the murder of an Osage

Indian couple in their home located on an Osage Indian allotment. See United

States v. Harris, 956 F.2d 279, 1992 WL 33210, at *1 (10 th Cir. Feb. 21, 1992)

(unpublished op.). The district court sentenced Mr. Harris to two concurrent

terms of life imprisonment. Id. at *2. On appeal Mr. Harris argued, in part, the

district court lacked subject matter jurisdiction because the jury convicted him

pursuant to 18 U.S.C. § 1153, pertaining to crimes committed by an Indian on an

Indian reservation, even though he is a non-Indian. 1 He also sought suppression

of his confession and other incriminating statements he made involuntarily, and

raised issues concerning prosecutorial misconduct. Id. at **1-2, 4-10. This court

affirmed Mr. Harris’s convictions and sentences on direct appeal but remanded

his case for reconsideration on the issue of restitution. Id. at **1, 10-11. In

affirming his convictions, we agreed Mr. Harris should have been convicted under


      1
         As we explained in Mr. Harris’s direct appeal, 18 U.S.C. § 1153, together
with § 1111, confers federal jurisdiction over any Indian who commits murder or
other crimes against another Indian or other person within Indian country, while
18 U.S.C. § 1152 confers exclusive federal jurisdiction over non-Indians
committing the same offenses in Indian country. See Harris, 1992 WL 33210, at
*3 (relying on United States v. John, 587 F.2d 683, 686 (5 th Cir. 1979)).

                                         -2-
18 U.S.C. § 1152, which makes the murder of an Indian by a non-Indian in

“Indian country” an offense within the exclusive jurisdiction of the United States,

rather than under 18 U.S.C. § 1153, pertaining solely to Indians committing such

an offense in Indian country. Id. at *3. However, we determined this

jurisdictional error in the indictment and his conviction was harmless beyond a

reasonable doubt. We also held “[t]he government established at trial that the

alleged murders occurred within Indian country as required under § 1152.” Id.

Two further appeals followed on the district court’s resolution of the restitution

issue which did not affect Mr. Harris’s convictions or life sentences. See United

States v. Harris, 7 F.3d 1537 (10 th Cir. 1993); United States v. Harris, 982 F.2d

530, 1992 WL 367659 (10 th Cir. Dec. 9, 1992) (unpublished op.).



      Thereafter, the district court denied Mr. Harris’s motions seeking a free

trial transcript for preparation of his motion under 28 U.S.C. § 2255 and

requesting the return of certain property, both of which we affirmed on appeal.

See United States v. Harris, 96 F.3d 1453, 1996 WL 494416 (10 th Cir. Aug. 27,

1996) (unpublished op.); United States v. Harris, 59 F.3d 179, 1995 WL 394151

(10 th Cir. July 5, 1995) (unpublished op.). On April 28, 1997, Mr. Harris filed a

motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentences on

various grounds, including his reassertion the district court lacked subject matter

jurisdiction because he was a non-Indian and the murder did not occur on an

                                         -3-
Indian reservation. See United States v. Harris, 198 F.3d 259, 1999 WL 987121,

at *1 (10 th Cir. Nov. 1, 1999) (unpublished op.). In denying his § 2255 motion,

the district court determined this court previously ruled on the same subject

matter jurisdiction issues on direct appeal, thereby barring them from further

consideration. Thereafter, this court denied Mr. Harris’s petition for a certificate

of appealability and dismissed his appeal. See id. at *3.



      Since filing his first § 2255 motion, Mr. Harris has filed six unsuccessful

requests for authorization to file a successive § 2255 motion. 2 Mr. Harris

renewed his previously adjudicated claim the federal courts lacked jurisdiction

over his case because he is not an Indian and the location of the offense was not

in Indian country. In denying Mr. Harris’s last motion for authorization to file a

second or successive 28 U.S.C. § 2255 motion, we warned him “any further effort

... to assert or reassert any substantive federal basis for relief from his 1990

conviction without satisfying the standards and requirements set forth in 28

U.S.C. § 2255, para. 8 or 28 U.S.C. § 2244(b)(3) may lead to the imposition of

sanctions.” We further note that in addition to these filings, Mr. Harris also

unsuccessfully brought two 28 U.S.C. § 2241 actions challenging the district


      2
        See Tenth Circuit Orders dated December 19, 2007 (Docket No. 07-
5171); May 10, 2007 (Docket No. 07-5040); May 15, 2006 (Docket No. 06-5088);
November 14, 2005 (Docket No. 05-5188); May 25, 2004 (Docket No. 04-5056);
and March 28, 2002 (Docket No. 02-5028).

                                          -4-
court’s subject matter jurisdiction based on the same argument; i.e., he is a non-

Indian and the offense did not occur in Indian country. He did not appeal the

district court’s adverse rulings in those actions.



      On April 5, 2010, Mr. Harris filed the instant petition for “Writ of Error

Audita Querela” pursuant to 28 U.S.C. § 1651, again raising the same

jurisdictional issues related to his being a non-Indian and whether the murders

occurred on an Indian reservation. He also requested sentencing relief under

United States v. Booker, 543 U.S. 220 (2005), and challenged his conviction on

grounds of actual innocence. In denying Mr. Harris relief, the district court

explained uncertainty existed as to whether writs of audita querela, used to

challenge a judgment correct at the time rendered but made infirm by matters

arising after the judgment, continue to apply in criminal cases. However, it

determined that even if such writs applied in criminal cases, 28 U.S.C. § 2255

provided Mr. Harris’s exclusive post-conviction remedy, and the mere fact he has

been precluded from filing a second or successive § 2255 petition did not

establish the inadequacy of § 2255 as an avenue for relief. It also noted Booker

does not have retroactive application to cases on collateral review and expressly

declined to re-characterize Mr. Harris’s petition as one brought under § 2255, due




                                          -5-
to both the expiration of the applicable limitation period for bringing such a

motion and Mr. Harris’s previous multiple requests to file a successive § 2255

motion.



                                   II. Discussion

      Mr. Harris now appeals the district court’s denial of his petition for a writ

of audita querela, renewing his argument he is actually innocent of the crimes

charged and that the federal courts lack jurisdiction over him because “he is not

an Indian” and the murders did not occur on “Indian Land.” Mr. Harris’s appeal

lacks merit for the following reasons.



      As the district court explained, we have held “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 (10 th Cir. 2002) (quotation marks omitted). Even

though the writ of audita querela has been abolished in civil cases, we

acknowledged in Torres that a petition for a writ of audita querela might afford

post-conviction relief to a criminal defendant to challenge a conviction or

sentence to the extent it fills gaps in the current system of post-conviction relief.

See id. But, in Torres, we also held a writ of audita querela is not available to

challenge a conviction or sentence “when other remedies exist, such as a motion

                                          -6-
to vacate sentence under 28 U.S.C. § 2255.” Id. at 1245 (quotation marks

omitted).



      In this case, we need not decide whether our standard of review is de novo

or is more deferential, as the district court’s denial of Mr. Harris’s audita querela

petition survives even our de novo review. First, to the extent Mr. Harris is

attempting to vacate, set aside, or correct his sentences or otherwise challenge his

convictions by means of his petition for a writ of audita querela, 28 U.S.C.

§ 2255 remains the proper avenue for a post-conviction challenge. “Where a

statute specifically addresses the particular issue at hand,” as § 2255 does here,

“it is that authority, and not the All Writs Act [under § 1651], that is controlling.”

Carlisle v. United States, 517 U.S. 416, 429 (1996) (quotation marks omitted).

As a result, no gap exists to fill in Mr. Harris’s post-conviction remedy. In other

words, the fact Mr. Harris has not been successful in his § 2255 motion and

requests to file a successive § 2255 motion does not mean a procedural avenue

has not been available to him but simply that his arguments did not warrant merit

or he failed to meet the criteria required for authorization to pursue such filings.

While we have warned Mr. Harris any future request to file a successive § 2255

motion may lead to sanctions, that limitation only applies to those requests that

do not satisfy the standards and requirements for filing such requests.




                                          -7-
      Even if we affirmatively deemed writs of audita querela are applicable in

criminal cases and found a gap existed in the instant case to challenge Mr.

Harris’s convictions and sentences, his Booker argument would nevertheless fail

as meritless. Following the Supreme Court’s Booker decision, we held its

principles concerning the advisory nature of the United States Sentencing

Guidelines applied only to cases on direct review and not retroactively to cases on

collateral review. See Bey v. United States, 399 F.3d 1266, 1269 (10 th Cir. 2005).

Similarly, concerning his assertion of actual innocence, Mr. Harris has not shown

in his brief on appeal, or anywhere else in the record before us, that an error

occurred which resulted in a “complete miscarriage of justice,” as required for

writs filed pursuant to 28 U.S.C. § 1651, see Jimenez v. Trominski, 91 F.3d 767,

768 (5 th Cir. 1996) (regarding audita querela § 1651 writ); United States v.

Williamson, 806 F.2d 216, 222 (10 th Cir. 1986) (regarding coram nobis § 1651

writ), or as otherwise required for post-conviction relief on claims of actual

innocence, see Calderon v. Thompson, 523 U.S. 538, 559 (1998); McCleskey v.

Zaut, 499 U.S. 467, 494 (1991).



      Finally, as to his jurisdictional argument, it is clear that by filing a petition

under 28 U.S.C. § 1651, Mr. Harris is attempting to both obtain a favorable result

on an issue we repeatedly held meritless and skirt our prior sanctions warning

concerning any future requests to file a § 2255 motion. His renewal in raising

                                          -8-
this same jurisdictional argument, despite our numerous adverse rulings,

demonstrates his argument here is blatantly frivolous, an abuse of the judicial

process, and the cause of unnecessary expenditures of judicial resources on a

matter which has been definitively adjudicated and deemed meritless. “The right

of access to the courts is neither absolute nor unconditional, and there is no

constitutional right of access to the courts to prosecute an action that is frivolous

or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314, 315 (10 th Cir.

1994) (per curiam) (quotation marks omitted). We have further held that where a

party has “engaged in a pattern of litigation activity which is manifestly abusive,

restrictions are appropriate.” Id. (quotation marks omitted).



      Accordingly, we caution Mr. Harris future post-conviction filings on

frivolous issues, brought under the guise of any federal statute, may result in

summary disposition, without discussion, and/or an order requiring him to show

cause why this court should not summarily dismiss such an action and impose

sanctions. See Andrews v. Heaton, 483 F.3d 1070, 1077-78 (10 th Cir. 2007).

While we granted Mr. Harris’s motion for leave to proceed in forma pauperis in

the instant action, we caution him we may limit permission to proceed in forma

pauperis in the future, regardless of his financial ability to pay such costs and

fees, based on his history of filing frivolous petitions. See In re McDonald, 489

U.S. 180, 183-85 (1989) (limiting petitioner from proceeding in forma pauperis in

                                          -9-
future petitions for extraordinary writs based on petitioner’s abuse of judicial

resources); Reneer v. Sewell, 975 F.2d 258, 260 (6 th Cir. 1992) (permitting “such

prospective orders where a plaintiff has demonstrated a history of unsubstantial

and vexatious litigation [amounting to] an abuse of the permission granted to him

to proceed as a pauper in good faith under 28 U.S.C. § 1915(d)”). The fact Mr.

Harris is a pro se litigant does not prohibit the court from such summary

disposition and limitations on frivolous or abusive filings. See Haworth v. Royal,

347 F.3d 1189, 1192 (10 th Cir. 2003).



                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the district court’s order denying

Mr. Harris’s petition filed pursuant to 28 U.S.C. § 1651.



                                         Entered by the Court:

                                         WADE BRORBY
                                         United States Circuit Judge




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