Reynaldo Rosario v. United States of America

CLD-272 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2601
___________
REYNALDO ROSARIO,
Appellant
v.
UNITED STATES OF AMERICA
___________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.N.J. Civ. No. 08-cv-05170)
District Judge: Honorable Jerome B. Simandle
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
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
(Opinion filed: August 21, 2009)
_________
OPINION
_________
PER CURIAM
Reynaldo Rosario, a federal prisoner proceeding pro se, appeals an order of the
United States District Court for the District of New Jersey dismissing his petition for a

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writ of audita querela. We will affirm the District Court’s order.
In 1993, Rosario pleaded guilty to possession with intent to distribute cocaine.
Rosario escaped from prison and remained a fugitive until 1999, when he was sentenced
to a term of 327 months in prison. In 2000, we affirmed the judgment of conviction. In
2001, the District Court denied Rosario’s motion to vacate his sentence pursuant to 28
U.S.C. § 2255. We denied Rosario’s request for a certificate of appealability, and the
United States Supreme Court denied his petition for a writ of certiorari.
In 2006, the District Court denied Rosario’s motion to reopen his § 2255
proceedings pursuant to Federal Rule of Civil Procedure 60(b). The District Court held
that Rosario’s motion, which raised a claim under Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005), constituted an unauthorized
second or successive § 2255 motion. We then denied Rosario’s application to file a
second or successive § 2255 motion challenging his sentence under Blakely and Booker.
Rosario also unsuccessfully filed in District Court two petitions for writ of habeas corpus
pursuant to 28 U.S.C. § 2241.
Rosario then 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. Rosario again challenged
his sentence under Booker, arguing that the sentencing judge improperly determined the
amount of drugs in his case. The District Court denied Rosario’s petition, and this appeal
followed.

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In the rare case that § 2255 is “inadequate or ineffective” because some limitation of1
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). Rosario stated in his “Motion for Point of
Clarification” that he was not seeking relief under § 2241.
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“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. 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 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 Rosario 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.1
Rosario may not seek relief through a petition for a writ of audita querela on the basis of

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Rosario’s motion for appointment of counsel is denied. See Tabron v. Grace, 6 F.3d2
147, 155 (3d Cir. 1993). His request for a certificate of appealability is denied as
unnecessary.
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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, 189-90 (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).
Accordingly, because this appeal does not present a substantial question, we will
affirm the District Court’s order.2

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