         09-1769-cr
         United States v. Joyner (Collins)


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”).    A PARTY CITING TO A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 21 st day of April, two thousand ten.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                RALPH K. WINTER,
10                JOHN M. WALKER, JR.,
11                     Circuit Judges.
12       _____________________________________
13
14       United States of America,
15
16                                     Appellee,
17
18                           v.                                   09-1769-cr
19
20       Raymond A. Collins,
21
22                                     Defendant-Appellant.
23
24       _____________________________________
25
26
27       FOR DEFENDANT-APPELLANT:                        Raymond A. Collins, pro se,
28                                                       White Deer, PA.
29
30       FOR APPELLEE:                                   Andrew T. Baxter, United
1                                       States Attorney for the
2                                       Northern District of New
3                                       York (Paul D. Silver,
4                                       Miroslav Lovric, Of
5                                       Counsel), Albany, NY.

6        Appeal from an order of the United States District

7    Court for the Northern District of New York (McAvoy, J.).

8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

9    AND DECREED that the order of the district court is

10   AFFIRMED.

11       Appellant Raymond Collins, proceeding pro se, appeals

12   from the district court’s order entered March 23, 2009,

13   denying his petition for a writ of audita querela.      We

14   assume the parties’ familiarity with the underlying facts,

15   the procedural history of the case, and the issues on

16   appeal.

17       We review de novo a district court’s denial of a writ

18   of audita querela.   United States v. Richter, 510 F.3d 103,

19   104 (2d Cir. 2007) (per curiam).    The writ of audita querela

20   “remain[s] available in very limited circumstances with

21   respect to criminal convictions.”    United States v.

22   LaPlante, 57 F.3d 252, 253 (2d Cir. 1995).    It “is probably

23   available where there is a legal, as contrasted with an



                                   2
1    equitable, objection to a conviction that has arisen

2    subsequent to the conviction and that is not redressable

3    pursuant to another post-conviction remedy.”   Id.; see also

4    United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th

5    Cir. 2001) (per curiam) (noting that the writ “survive[s]

6    only to the extent that [it] fill[s] ‘gaps’ in the current

7    systems of postconviction relief”).   And the writ also

8    “might be deemed available if [its] existence were necessary

9    to avoid serious questions as to the constitutional validity

10   of both [28 U.S.C.] § 2255 and § 2244--if, for example, an

11   actually innocent prisoner were barred from making a

12   previously unavailable claim under § 2241 as well as

13   § 2255.”   Triestman v. United States, 124 F.3d 361, 380 n.24

14   (2d Cir. 1997).

15       This unusual form of relief is unavailable to Collins.

16   First, another venue of judicial review was available.

17   Appellant’s present claims based on Apprendi v. New Jersey,

18   530 U.S. 466 (2000), and Jones v. United States, 529 U.S.

19   848 (2000), were considered with respect to his 28

20   U.S.C. § 2255 motion and his subsequent motion for



                                   3
1    reconsideration, and we declined to grant a certificate of

2    appealability in his appeal from the denial of those

3    motions.    Accordingly, Appellant’s claims have received

4    adequate consideration.

5        Second, even if Appellant could show that adequate

6    relief was unavailable, he would have to show that this is

7    case in which “the failure to allow for collateral review

8    would raise serious constitutional questions.”      Triestman,

9    124 F.3d at 377.     However, he does not argue that his

10   conduct was rendered non-criminal by intervening statutory

11   interpretations.     Cf. id.   He contends that he is factually

12   innocent of the conduct that resulted in his sentence of

13   life imprisonment, but he continues to dispute only his

14   intent to cause the death, not the fact that the death

15   occurred--a contention that this Court expressly considered

16   and rejected in denying his petition for rehearing on direct

17   appeal.    See United States v. Joyner, 313 F.3d 40, 45-46 (2d

18   Cir. 2002) (concluding that while the district court erred

19   under Apprendi, the error did not “seriously affect the

20   fairness, integrity, or public perception of the fairness of

21   Collins’s trial”).     Similarly, while Appellant sought to

22   challenge the jury charge on whether the building in



                                      4
1    question was connected to interstate commerce, he does not

2    dispute that the building in question contained a bar that

3    operated as a commercial business.   Accordingly, Appellant

4    has not raised “serious questions as to the constitutional

5    validity” of the post-conviction structure, for which the

6    narrow possibility of audita querela relief has been

7    preserved.

8        We have considered all of Appellant’s arguments and

9    find them to be without merit.   For the foregoing reasons,

10   we AFFIRM the order of the district court.
11
12                              FOR THE COURT:
13                              Catherine O’Hagan Wolfe, Clerk
14




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