United States of America v. Frankie Thomas

ALD-324 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-4613
___________
UNITED STATES OF AMERICA,
v.
FRANKIE THOMAS,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 96-cr-00297)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 24, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: October 5, 2009 )
_________
OPINION
_________
PER CURIAM
Frankie Thomas appeals pro se from an order of the United States District Court
for the Middle District of Pennsylvania dismissing his petition for Writ of Audita Querela
as an improper attempt to circumvent the prior authorization requirement for second or

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successive motions pursuant to 28 U.S.C. § 2255. We will summarily affirm.
In 1997, Thomas was sentenced to a total of 322 months’ imprisonment upon
conviction for armed bank robbery and carrying a firearm in relation to a crime of
violence. We affirmed Thomas’s convictions and sentence on appeal. See United States
v. Thomas, No. 97-7387 (judgment entered March 13, 1998). The District Court denied
Thomas’s first motion to vacate sentence under 28 U.S.C. § 2255 and we declined to
issue a certificate of appealability. See United States v. Thomas, No. 99-3050 (order
entered August 12, 1999). He filed a second § 2255 motion in 2001, which the District
Court denied as an unauthorized second or successive motion. Thomas did not file an
appeal. Thomas submitted two applications under 28 U.S.C. § 2244 seeking our
authorization to file a second or successive § 2255 motion, each of which was denied. In
2005, Thomas filed a § 2241 petition, which the District Court dismissed for lack of
jurisdiction; this Court dismissed the appeal. In 2007, he filed a motion raising claims
pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255, which the District Court
dismissed. We summarily affirmed the dismissal of the § 3582(c)(2) claims as frivolous
and declined to issue a certificate of appealability as to the § 2255 claims based on
Thomas’s failure to make a substantial showing of the denial of a constitutional right.
See United States v. Thomas, No. 07-1502 (3d Cir. Jul. 17, 2007).
In 2008, Thomas challenged his sentence under the All Writs Act, 28 U.S.C. §
1651, by filing a petition for writ of audita querela in the District Court. He claimed that

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he should be re-sentenced under United States v. Booker, 543 U.S. 220 (2005), because
the District Court wrongly treated the guidelines as mandatory at his sentencing. The
District Court dismissed the petition, holding that the proper means of challenging his
sentence was through a petition filed under § 2255. The District Court noted, however,
that Thomas was required to seek our permission before he could file a second or
successive § 2255 motion in the District Court. Thomas filed this timely appeal.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Upon de novo
review of the record and careful consideration of Thomas’s submissions on appeal, we
conclude that no substantial question is presented on appeal and that summary action is
warranted. See LAR 27.4 and I.O.P. 10.6.
After the District Court dismissed Thomas’s petition, we decided Massey v. United
States, ___ F.3d ___, 2009 WL 2902195 (3d Cir. Sept. 11, 2009). In Massey, the
petitioner sought audita querela relief under the All Writs Act based on a Booker claim,
after the District Court had denied § 2255 relief. We affirmed the District Court’s denial
of the audita querela petition, holding that Massey’s sole means for raising his Booker
claim was through § 2255. We emphasized that § 2255 is the means to collaterally attack
a federal conviction or sentence, except in the rare instance, not present in Massey, where
§ 2255 is determined to be “inadequate or ineffective.” Id. at *1. Here, as in Massey,
Thomas’s inability to satisfy the AEDPA’s gatekeeping requirements for filing a second
or successive § 2255 motion to vacate his sentence does not render § 2255 “inadequate or

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ineffective,” and, thus, he may not seek audita querela relief. Massey, 2009 WL
2902195, at *1.
Accordingly, we will affirm the District Court’s order dismissing Thomas’s
petition for a writ of audita querela.
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