DLD-256                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 12-2126
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                          DIODAYAN LEDESMA-CUESTA,
                                        Appellant
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2:01-cr-00374-001)
                       District Judge: Honorable Stewart Dalzell
                      ____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 August 16, 2012
             Before: AMBRO, JORDAN and VANASKIE, Circuit Judges

                            (Opinion filed: August 27, 2012)
                                       _________

                                        OPINION
                                        _________

PER CURIAM

       Diodayan Ledesma-Cuesta appeals an order denying 1) his request for audita

querela relief under 28 U.S.C. § 1651 and 2) his motion for correction of a clerical error

in the criminal judgment pursuant to Fed. R. Crim. P. 36. Finding no substantial question
to be presented by this appeal, we will summarily affirm. 1 In a previous opinion, we

explained to the appellant that attacks on his federal conviction and sentence must

generally be pursued via 28 U.S.C. § 2255, which in his case would require seeking

authorization from this Court; he has not done so, and nothing in the interim has altered

the unavailability of the writ of audita querela. See United States v. Ledesma-Cuesta,

443 F. App’x 685, 685–86 (3d Cir. 2011). Furthermore, we agree with the District Court

that there is no clear clerical error in the judgment, especially as the superseding

indictment contains the same offense-conclusion date reflected in the judgment. 2

Summary affirmance is therefore appropriate. See Murray v. Bledsoe, 650 F.3d 246, 248

(3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.




       1
        We have jurisdiction pursuant to 28 U.S.C. § 1291. Although we have
apparently not established, in this Circuit, a precise standard for review of Rule 36
motions, we need not do so today because appellant’s request is infirm under any
available standard.
       2
         The appellant appears to admit that he seeks to correct his judgment because he
believes that this will allow him to proceed anew via 28 U.S.C. § 2255 without having to
satisfy the “second or successive” requirements of 28 U.S.C § 2255(h) and 28 U.S.C.
§ 2244(b)(3). But Magwood v. Patterson, 130 S. Ct. 2788 (2010), upon which he relies,
involved a resentencing leading to a revised state-court judgment. Id. at 2796. He points
to no precedential opinion that suggests that the correction of a clerical error serves to
either restart the limitations period or negate the existence of a prior attempt at collateral
relief.
                                              2
