     Case: 10-20604     Document: 00511549814         Page: 1     Date Filed: 07/25/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 25, 2011
                                     No. 10-20604
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

LUIS GERARDO RIOS-CASTANO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 4:92-CR-137-32


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Luis Gerardo Rios-Castano (Rios), federal inmate # 59339-079, appeals the
district court’s dismissal of his petition for a writ of audita querela for lack of
jurisdiction. Rios concedes that he unsuccessfully raised the issue of ineffective
assistance of counsel based on his attorney having fallen asleep during trial in
the 28 U.S.C. § 2255 motion that he filed in 1999. However, because his § 2255
motion was denied prior to the en banc decision in Burdine v. Johnson, 262 F.3d
336 (5th Cir. 2001), he contends that he is entitled to raise this issue again in a

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 10-20604     Document: 00511549814       Page: 2    Date Filed: 07/25/2011

                                    No. 10-20604

writ of audita querela. Rios asserts that the decision in Burdine requires a
presumption of prejudice and that sleeping counsel is a structural error that
requires automatic reversal.
      The writ of audita querela arises under the All Writs Act. United States
v. Banda, 1 F.3d 354, 355 (5th Cir. 1993). “The All Writs Act is a residual source
of authority to issue writs that are not otherwise covered by statute.”
Pennsylvania Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).
The writ of audita querela was abolished in the civil context by Federal Rule of
Criminal Procedure 60(b). See United States v. Miller, 599 F.3d 484, 487 (5th
Cir. 2010). This court has “acknowledged, with some reservation, that the writ
of audita querela might [] survive in criminal adjudications, if there is a gap for
it to fill.” Id. at 487-88. “If it still exists, the writ of audita querela can only be
applied to rectify a judgment which, though correct when rendered, has since
become infirm.” Miller, 599 F.3d at 490. It is not available for equitable relief.
Id. at 488. The writ of audita querela also is not available if the legal objection
raised can be brought pursuant to any other postconviction remedy. Id. Thus,
a prisoner may not seek a writ of audita querela if he “may seek redress under
§ 2255.” Banda, 1 F.3d at 356. The fact that a movant cannot meet the
requirements for bringing a successive § 2255 motion does not render the § 2255
remedy unavailable. Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000).
Because Rios may, and has, pursued relief for his ineffective assistance claim
under § 2255, the writ of audita querela is not available to him. See Miller, 599
F.3d at 488, 490; Banda, 1 F.3d at 356. Even if the writ was available, Rios has
not shown that the decision in Burdine subsequently rendered the judgment
against him infirm. See Burdine, 262 F.3d at 348-49.
      Rios also argues that he is barred by the gate keeping provisions of the
Antiterrorism and Effective Death Penalty Act from filing another § 2255 motion
and that the constitutionality of those provisions will be called into question if
he may not proceed by writ of audita querela. Because Rios did not properly

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                                  No. 10-20604

raise this issue before the district court, having mentioned it only in his notice
of appeal, we do not address this issue for the first time on appeal. See Wiley v.
State Farm Fire & Cas. Co., 585 F.3d 206, 212-14 & n.21 (5th Cir. 2009).
      AFFIRMED.




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