Derrick Massey v. UNITED STATES OF AMERICA On Appeal from the United States District Court for the…

CLD-268 PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1665
DERRICK MASSEY,
Appellant
v.
UNITED STATES OF AMERICA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 09-mc-000022)
District Judge: Honorable Harvey Bartle, III
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 30, 2009
Before: RENDELL, HARDIMAN and VAN ANTWERPEN,
Circuit Judges.
(Filed: September 11, 2009)

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Derrick Massey
Fort Dix FCI
P.O. Box 2000
Fort Dix, NJ 08640-0000
Pro Se
J. Alvin Stout, III, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106-0000
Attorney for Appellee
OPINION OF THE COURT
PER CURIAM
Derrick Massey, a federal prisoner proceeding pro se,
appeals an order of the United States District Court for the
Eastern District of Pennsylvania denying his petition for a writ
of audita querela. We will affirm the District Court’s order.
In 1998, Massey pleaded guilty to conspiracy to distribute
more than 500 grams of cocaine and marijuana and to unlawful
use of a communications facility. Massey was sentenced to a
term of 292 months in prison. In 2000, we affirmed the
judgment of conviction. In 2002, the District Court denied

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Massey’s motion to vacate his sentence pursuant to 28 U.S.C.
§ 2255. We denied Massey’s request for a certificate of
appealability.
In 2009, Massey challenged his sentence under the All
Writs Act, 28 U.S.C. § 1651, by filing a petition for a writ of
audita querela in District Court. Massey argued that he should
be afforded a new sentencing hearing under United States v.
Booker, 543 U.S. 220 (2005). He asserted that the sentencing
court might have imposed a shorter sentence if the court had not
viewed the sentencing guidelines as mandatory. The District
Court denied Massey’s petition, and this appeal followed.
“The All Writs Act is a residual source of authority to
issue writs that are not otherwise covered by statute.”
Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474
U.S. 34, 43 (1985). “Where a statute specifically addresses the
particular issue at hand, it is that authority, and not the All Writs
Act, that is controlling.” Id. 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) (quoting 11
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2867, at 235 (1973)). Historically, audita querela
existed as a remedy primarily for judgment debtors. Id.
While the writ of audita querela has been abolished in
civil cases, see Fed. R. Civ. P. 60(e), the writ is available in
criminal cases to the extent that it fills in gaps in the current
system of post-conviction relief. United States v. Holt, 417 F.3d

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In the rare case that § 2255 is “inadequate or ineffective”1
because some limitation of scope or procedure would prevent a
§ 2255 proceeding from affording a full hearing and
adjudication of a claim, a federal prisoner may seek relief via 28
U.S.C. § 2241. Cradle v. United States ex rel. Miner, 290 F.3d
536, 538 (3d Cir. 2002) (per curiam). See also In re Dorsainvil,
119 F.3d 245 (3d Cir. 1997). This is not the case here.
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1172, 1175 (11th Cir. 2005); United States v. Valdez-Pacheco,
237 F.3d 1077, 1079 (9th Cir. 2001). See also United States v.
Richter, 510 F.3d 103, 104 (2d Cir. 2007) (stating that the writ
is probably available where there is a legal objection to a
conviction that has arisen after the conviction and that is not
redressable pursuant to another post-conviction remedy).
A motion to vacate sentence pursuant to 28 U.S.C.
§ 2255 is the means to collaterally challenge a federal conviction
or sentence. The District Court correctly held that Massey may
not seek relief via a petition for a writ of audita querela because
his claim is cognizable under § 2255. There is no gap to fill in
the post-conviction remedies. Massey may not seek relief1
through a petition for a writ of audita querela on the basis of his
inability to satisfy the requirements of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) for filing a
second or successive § 2255 motion to vacate sentence. See
Valdez-Pacheco, 237 F.3d at 1080 (noting 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.”). See also United States v. Baptiste, 223 F.3d 188, 189-

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Kessack v. United States, 2008 WL 189679 (W.D. Wash.2
Jan. 18, 2008), an unpublished decision relied upon by Massey,
is not persuasive. 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. We also note that
Kessack presented equal protection considerations not present
here.
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90 (3d Cir. 2000) (per curiam) (stating that a prisoner may not
resort to a writ of coram nobis merely because he cannot meet
AEDPA’s gatekeeping requirements).2
Accordingly, because this appeal does not present a
substantial question, we will affirm the District Court’s order
denying Massey’s petition for a writ of audita querela.

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