                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-2009

USA v. James Fraction, Jr.
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3807




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Recommended Citation
"USA v. James Fraction, Jr." (2009). 2009 Decisions. Paper 1771.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1771


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CLD-100                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-3807
                                      ___________

                           UNITED STATES OF AMERICA

                                            v.

                            JAMES E. FRACTION, JR.,
                                           Appellant
                      ____________________________________

                      Appeal from the United States District Court
                               for the District of New Jersey
                            (D.C. Criminal No. 95-cr-00597)
                      District Judge: Honorable William J. Martini
                      ____________________________________

                  Submitted for Possible Summary Action Pursuant to
                       Third Circuit LAR 27.4 and I.O.P. 10.6
                                  February 12, 2009

          Before: RENDELL, HARDIMAN, and GREENBERG, Circuit Judges

                                 (Filed: March 5, 2009)
                                       _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM

      James Fraction, proceeding pro se, appeals from the District Court’s order denying

his petition for Writ of Error per: Audita Querela and All Writs Act, 28 U.S.C. § 1651.

The District Court held that Fraction’s claims are cognizable under 28 U.S.C. § 2255, and
as a result, the writ of audita querela was not available as a remedy. The Court denied

Fraction’s motion without prejudice to his right to file a motion under either 28 U.S.C. §

2255 or 28 U.S.C. § 2241. Fraction filed a timely notice of appeal in this Court. Fraction

then filed a document purporting to be habeas petition pursuant to 28 U.S.C. § 2241 in

this Court. For the reasons to follow, we will summarily affirm the District Court’s order

pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 because no substantial question is

presented by this appeal.

       In his petition, Fraction alleged that Congress violated the Quorum and General

Journal Clause, Article 1, Section 5, of the United States Constitution, in its 1947 revision

of Title 18 of the United States Code.1 According to Fraction, no quorum was present

when Congress voted on the bill. Therefore, Fraction contends, his conviction under 18

U.S.C. § 3231 is unconstitutional.

       Motions pursuant to 28 U.S.C. § 2255 are “the presumptive means by which

federal prisoners can challenge their convictions or sentences that are allegedly in

violation of the Constitution.” Okereke v. United States, 307 F.3d 117, 120 (3d Cir.

2002)(citing Davis v. United States, 417 U.S. 333, 343 (1974)); see also Wright v. Cuyler,

624 F.2d 455, 457 (3d Cir. 1980)). The All Writs Act under which Fraction filed his

petition is a residual source of authority to issue writs “where exceptional circumstances




  1
   Title 18 of the United States Code is the criminal and penal code of the federal
government of the United States, dealing with federal crimes and criminal procedure.

                                              2
require it.” Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43

(1985). In United States v. Valdez-Pacheco, 237 F.3d 1077 (9th Cir. 2001), the Court of

Appeals for the Ninth Circuit held that “[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”

such as audita querela. Id. at 1080. As a result, § 2255 is not rendered “inadequate or

ineffective,” thereby enabling a prisoner to resort to coram nobis, by the mere fact that he

cannot meet the stringent standards for authorizing the filing of a second or successive §

2255 motion. United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000)(per curiam).

The same applies to petitions for a writ of audita querela. See United States v. Holt, 417

F.3d 1172, 1175 (11th Cir. 2005)(writ of audita querela unavailable where relief is

cognizable under § 2255). As a result, the District Court was correct to deny Fraction’s

petition, and we will summarily affirm the District Court’s decision.

       We also note that Fraction has filed a habeas petition pursuant to § 2241 in this

Court. Such a petition must first be filed in the appropriate District Court. We express no

opinion on the merits of Fraction’s claim.




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