Louis A. Hyman v. United States of America

CLD-269 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1912
___________
LOUIS A. HYMAN,
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-05999)
District Judge: Honorable Garrett E. Brown, Jr.
____________________________________
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
(Opinion filed: August 24, 2009)
_________
OPINION
_________
PER CURIAM
Louis Hyman, 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 writ of
audita querela. We will affirm the District Court’s order.

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Hyman’s motion to proceed in forma pauperis on appeal is granted. His motion to1
waive the filing fee is denied.
2
In 2003, Hyman pleaded guilty to conspiracy to obstruct articles in interstate
commerce, conspiracy to obstruct, delay, and affect commerce and the movement of
articles and commodities in commerce by robbery, and carrying a firearm in relation to a
crime of violence. Hyman was sentenced to an aggregate term of 176 months in prison.
He did not file a direct appeal. In 2007, the District Court denied Hyman’s motion to
vacate his sentence pursuant to 28 U.S.C. § 2255 because it was untimely filed. We
denied Hyman’s request for a certificate of appealability.
Hyman 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. Hyman argued that the
statute of limitations applicable to his § 2255 motion should have been equitably tolled
because his attorney failed to file a direct appeal on his behalf, and that he is entitled to
re-sentencing under United States v. Booker, 543 U.S. 220 (2005). The District Court
denied Hyman’s petition, and this appeal followed.1
“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

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In the rare case that § 2255 is “inadequate or ineffective” because some limitation of2
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.
3
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 Hyman may not relitigate the denial of his § 2255 motion via a petition for a writ of
audita querela. In addition, Hyman may not seek relief under Booker through a petition
for a writ of audita querela because such a claim is cognizable in a § 2255 motion. There
is no gap to fill in the post-conviction remedies. Hyman may not seek relief through a2
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

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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. Hyman’s “Motion for the Appeal Courts Merits Panel”
is denied.

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