                   UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
UNITED STATES OF AMERICA,     )
                              )
                              )
     v.                       )
                              )    Criminal Case No. 96-57-2 (EGS)
RICARDO M. GROSS,             )
                              )
           Defendant.         )
______________________________)

                        MEMORANDUM OPINION

     Pending before the Court is defendant Ricardo M. Gross’s pro

se petition for writ of audita querela, and the government’s

motion to construe the petition as a successive motion to vacate

sentence under 28 U.S.C. § 2255 and to transfer the motion to the

United States Court of Appeals for the District of Columbia

Circuit.   Upon consideration of the motions, the response and

reply thereto, the applicable law, and for the reasons stated

below, both motions are DENIED.

I.   BACKGROUND

     On or about July 31, 1996, after a trial before this Court,

a jury found defendant guilty of armed bank robbery, use of a

firearm during a crime of violence, armed carjacking, and first-

degree theft from a senior citizen.   On February 14, 1997, the

Court also found defendant guilty of possession of a firearm by a
convicted felon.1   On June 27, 1997, the Court sentenced

defendant to 108 months of incarceration for armed bank robbery,

followed by a consecutive 10 year sentence for use of a firearm

during a crime of violence, as well as a concurrent sentence of

108 months for the felon-in-possession charge and 15-45 years2

for the armed carjacking and first-degree theft offenses.

     Defendant filed a timely notice of appeal, and on February

26, 1999, the Circuit affirmed defendant’s convictions.     See

United States v. Gilliam, 167 F.3d 628, 631, 640 (D.C. Cir. 1999)

(affirming Defendant Gross’s convictions and sentence).




     1
          Defendant elected a bench trial on the felon-in-
possession count.
     2
          D.C. Code offenses committed before August 5, 2000 were
sentenced pursuant to an indeterminate sentencing scheme.
Compare D.C. Code § 24-403 (2000) with D.C. Code § 24-403.01
(2010) (requiring the Court to impose a determinate sentence and
period of supervised release for crimes committed on or after
August 5, 2000). Under the indeterminate sentencing scheme,
courts were required to impose a sentence containing a minimum
and maximum term, whereby the minimum term could not exceed one-
third of the maximum sentence imposed. See generally Sellmon v.
Reilly, 551 F. Supp. 2d 66, 70 n.3 (D.D.C. 2008) (citing D.C.
Code § 24-403 (2001)); see also id. (explaining that after a
defendant becomes eligible for parole, the paroling authority and
corrections officials determine the actual release date within
the range specified by the court). Accordingly, while expressing
its desire to sentence defendant to a 15 year sentence, see
Sentencing Tr. at 20:18-20 (“My intent is not that he serve 45
years in jail on that count. That is not my intent at all. My
intent is that he serve the 15 years.”), the Court nevertheless
sentenced defendant to a 15-45 year range for the armed
carjacking and first-degree theft offenses consistent with the
indeterminate sentencing scheme.

                                 2
Defendant’s petition for writ of certiorari was denied on June 7,

1999.        See Gross v. United States, 526 U.S. 1164 (1999).

        On August 10, 2000, defendant filed a motion to vacate, set

aside, or correct his sentence pursuant to 28 U.S.C. § 2255,

which the Court denied on September 23, 2005.        See Docket No.

198.    On May 29, 2009, defendant filed the pending petition for

writ of audita querela, and on October 9, 2009, the government

filed a motion to transfer defendant’s motion under 28 U.S.C.

§ 2255.       These motions are now ripe for determination by the

Court.

II.     Analysis

        A.     Government’s Motion to Construe the Petition as a
               Successive § 2255 Motion

        As a threshold matter, the government asks the Court to

construe defendant’s petition as a motion to vacate sentence

under 28 U.S.C. § 2255.       Because defendant “has unequivocally

elected to seek relief by way of audita querela rather than 28

U.S.C. § 2255,” the Court declines to do so.        See In re Kennedy,

No. 07-3048, 2007 U.S. App. LEXIS 18083, at *1-2 (D.C. Cir. July

27, 2007) (returning petition for writ of audita querela to the

district court, and explaining that the defendant’s “election

should be respected”).       Indeed, defendant specifically asks this

Court to “decline to construe [his] petition as a § 2255

successive petition.”       Def.’s Pet. at 9.   The Court, therefore,



                                      3
will respect defendant’s decision to proceed by way of audita

querela, and will consider his petition on the merits.

Accordingly, the government’s motion to transfer defendant’s

petition to the Circuit is DENIED.     See, e.g., In re Kennedy,

2007 U.S. App. LEXIS 18083, at *1 (“Because petitioner has filed

a petition for writ of audita querela, not a 28 U.S.C. § 2255

application, he does not need authorization from [the Circuit

Court] to proceed with his petition.”).

     B.      Defendant’s Petition for Writ of Audita Querela

     “The common law writ of audita querela permitted a defendant

to obtain relief against a judgment or execution because of some

defense or discharge arising subsequent to the rendition of the

judgment.”     United States v. Ayala, 894 F.2d 425, 427 (D.C. Cir.

1990) (internal quotation marks omitted).    Although historically

audita querela has existed primarily as a remedy for judgment

debtors, some courts have recognized the writ as a remedy for

criminal defendants.     See id. (citing cases).    In this Circuit,

however, the writ of audita querela is cognizable only if a

defendant raises “a legal objection not cognizable under the

existing scheme of postconviction remedies.”       Id. at 426.3   The



     3
          In civil practice, the writ of audita querela has been
expressly overruled by Federal Rule of Civil Procedure 60(e).
See Fed. R. Civ. P. 60(e) (“The following are abolished: bills of
review, bills in the nature of bills of review, and writs of
coram nobis, coram vobis, and audita querela.”). This rule,

                                   4
writ of audita querela may not, therefore, be used “‘to

circumvent the limitations of filing § 2255 motions[.]’”    Harris

v. United States, 522 F. Supp. 2d 199, 200 n.1 (quoting In re

Norris, No. 02-3076, 2002 U.S. App. LEXIS 23324, at *1 (D.C. Cir.

Nov. 8, 2002)); see also Ayala, 894 F.2d at 427 (holding that

audita querela had been superseded in federal criminal practice

by 28 U.S.C. § 2255 and the writ of coram nobis).

     In his petition, defendant “seeks to have his ten (10) year

mandatory sentence reduced to five (5) years mandatory because

the mandatory guidelines used in the 1997 sentencing hearing has

now been declared unconstitutional” and “to have the forty-five

(45) years suspended from his D.C. Code sentence.”   Def.’s Pet.

at 10.   While defendant argues that these claims are not

cognizable under § 2255, see Def.’s Reply at 3-5, this Court

simply cannot agree.4   Accordingly, because defendant seeks to


however, has not been construed as abolishing audita querela in
the criminal context. See Ayala, 894 F.2d at 428 n.4
(“dipos[ing] of any argument that Rule 60(b) abolishes audita
querela in criminal proceedings”).
     4
          Having carefully reviewed Kessack v. United States, No.
05-1828, 2008 U.S. Dist. LEXIS 7739 (W.D. Wash. Jan. 18, 2008),
the case upon which defendant primarily relies, the Court finds
it unpersuasive in light of the facts of this case.
Specifically, Kessack presented equal protection considerations
not present here. See id. at *2 (granting the defendant’s
petition for writ of audita querela and ordering re-sentencing in
order to stop “a grave injustice that is occurring as a result of
[the defendant’s] 30 year-sentence,” where the defendant received
a sentence “at least 20 years greater than any of his [equally-
culpable] co-defendants” as a result of the “then-mandatory
Federal Sentencing Guidelines now declared unconstitutional”);

                                 5
modify his sentence on grounds that could be raised under

existing federal postconviction remedies, see 28 U.S.C. § 2255(a)

(“A prisoner in custody . . . claiming . . . that the sentence

was imposed in violation of the Constitution or laws of the

United States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.”), his petition for writ of

audita querela is DENIED.

III. CONCLUSION

     For the reasons set forth above, the government’s motion to

construe defendant’s petition as a successive § 2255 motion and

for transfer to the Circuit is hereby DENIED.   In addition,

defendant’s petition for writ of audita querela is DENIED.     A

separate Order accompanies this Memorandum Opinion.

     SO ORDERED.

Signed:   Emmet G. Sullivan
          United States District Judge
          April 27, 2010




cf. Massey v. United States, 581 F.3d 172, 174 n.2 (3d Cir. 2009)
(“Although Kessack suggests that the writ of audita querela may
fill a gap in § 2255 where a case such as Booker does not apply
retroactively on collateral review, the retroactivity of the rule
relied upon by a prisoner is one of § 2255’s valid gatekeeping
requirements.”).

                                6
Notice to:

Ricardo Mathew Gross
Reg. No. 20470-016
CUMBERLAND
FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1000
Cumberland, MD 21501




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