United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE
matter is before the Court upon petitioner Raymond
Amerson's Petition for Writ of Audita Querela, filed
pursuant to the All Writs Act, 28 U.S.C. § 1651. The
petition will be denied, and this case will be dismissed with
prejudice. In addition, Amerson will be relieved of the
obligation to pay the statutory filing fee or move for leave
to proceed in forma pauperis.
of 1993, Amerson was convicted by a jury of one count of
conducting an enterprise through a pattern of racketeering
activity in violation of 18 U.S.C. § 1962(c), one count
of conspiring to do the same in violation of 18 U.S.C. §
1962(d), and two counts of committing violent crimes (murder,
conspiracy to commit murder, and attempted murder) in aid of
a racketeering enterprise in violation of 18 U.S.C. §
1959. United States v. Amerson, Case No.
4:91-cr-1-CDP-6 (E.D. Mo. Apr. 18, 1997). He was sentenced to
life imprisonment. The United States Court of Appeals for the
Eighth Circuit affirmed the convictions. United States v.
Darden, et al., 70 F.3d 1507 (8th Cir. 1995).
March of 1997, Amerson filed a motion for relief in the
closed criminal case. On November 27, 2000, the Court denied
relief under all espoused legal theories, including
explicitly denying relief under 28 U.S.C. § 2255. On
appeal, the Eighth Circuit denied an application for a
certificate of appealability, and dismissed the appeal.
See Amerson Bey v. United States, Case No. 01-1429
(8th Cir. 2001). On July 25, 2002, Amerson moved for
reconsideration of the November 27, 2000 order, but his
motion was denied as untimely and meritless. On September 6,
2002, Amerson filed another motion, which was construed as a
motion to vacate pursuant to § 2255. Amerson v.
United States, 4:02-cv-1396-CDP (E.D. Mo. Nov. 13,
2002). In a Memorandum and Order dated November 13, 2002, the
motion to vacate was dismissed as time-barred and
successive. Amerson did not appeal.
continued to challenge his sentence in a variety of ways. For
example, on July 31, 2003, he filed a “petition for
right of review pursuant to Title 5, United States Code
§ 702” in which he questioned this Court's
jurisdiction and presented various arguments about the
constitutionality of the federal criminal statutes under
which he had been convicted. Amerson v. United
States, Case No. 4:03-cv-1050-CDP (E.D. Mo. Nov. 3,
2003). On November 3, 2003, the case was dismissed as
successive, Amerson appealed, and on May 24, 2004, the Court
of Appeals affirmed. Amerson v. United States, Case
No. 04-1025 (8th Cir. 2004). In 2011, Amerson filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2241, which was dismissed for want of jurisdiction.
Amerson v. United States, Case No. 4:11-cv-272-LMB
(E.D. Mo. Feb. 23, 2011). On September 19, 2014, Amerson
filed another motion to vacate pursuant to 28 U.S.C. §
2255, which was dismissed as successive. Amerson v.
United States, Case No. 4:14-cv-1644-CDP (E.D. Mo. Oct.
7, 2014). Amerson appealed the dismissal, but on February 13,
2015, the Court of Appeals affirmed. Amerson v. United
States, Case No. 14-3631 (8th Cir. 2014).
case at bar, Amerson continues his efforts to have this Court
modify his sentence. He identifies the instant petition as
one filed pursuant to the All Writs Act seeking a writ of
audita querela. He states that he seeks relief based upon
Amendment 790 to the Guidelines, which clarified the use of
relevant conduct in offenses involving multiple participants.
He argues that the Court failed to make the findings required
by Amendment 790, and asks the Court to correct his sentence.
writ of audita querela is a common law writ ‘available
to a judgment debtor who seeks a rehearing of a matter on
grounds of newly discovered evidence or newly existing legal
defenses.'” United States v. Boal, 534
F.3d 965, 967 n. 2 (8th Cir. 2008) (internal citation
omitted). Although a writ of audita querela remains
theoretically available in criminal cases by virtue of the
All Writs Act, 28 U.S.C. § 1651, see Morgan v.
United States, 346 U.S. 502, 506 (1954), it is available
on a very limited basis, only to the extent it fills in
“gaps” in the current system of post-conviction
relief. Massey v. United States, 581 F.3d 172, 174
(3rd Cir. 2009). As the Supreme Court has held: “the
All Writs Act is a residual source of authority to issue
writs that are not otherwise covered by statute. Where a
statute specifically addresses the particular issue at hand,
it is that authority, and not the All Writs Act, that is
controlling.” Carlisle v. United States, 517
U.S. 416, 429 (1996) (quoting Pennsylvania Bureau of
Correction v. United States Marshals Service, 474 U.S.
34, 43 (1985)); see also United States v. Feist, 346
Fed.Appx. 127 (8th Cir. 2009) (“A writ of audita
querela is not available where other cognizable remedies
case, because Amerson is seeking modification of his sentence
due to an amendment to the Sentencing Guidelines, the proper
avenue to seek relief is 18 U.S.C. § 3582. Because
“a statute specifically addresses the particular issue
at hand, it is that authority, and not the All Writs Act,
that is controlling, ” Carlisle, 517 U.S. at
429, and a writ of audita querela is unavailable.
Feist, 346 Fed.Appx. 127.
argues that a writ of audita querela is available because 18
U.S.C. § 3582 and 28 U.S.C. § 2255 are inadequate
or ineffective. Amerson writes that his challenge is not
based on a new rule of constitutional law made retroactive to
cases on collateral review or upon a Guidelines Amendment
that is listed in § 1B1.10(d), and argues:
“[T]hus, a § 2255 and/or § 3582(c)(2) is
‘INADEQUATE or INEFFECTIVE' to challenge his
sentence and/or to request a sentence reduction.”
(Docket No. 1 at 8).
Court disagrees. Amerson's argument is flawed because it
attributes blame to the wrong source. Amerson's true
impediment is the fact that Amendment 790 is not retroactive,
not the remedies of § 3582 and/or § 2255. In other
words, Amerson's attempt to gain relief is not hampered
by the § 3582 and/or § 2255 remedies themselves, it
is hampered because Amendment 790 is not retroactive.
See, e.g., U.S. ex rel. Perez v. Warden, FMC
Rochester, 286 F.3d 1059, 1062 (8th Cir. 2002) (§
2255 was not inadequate or ineffective because
Apprendi relief was, as a practical matter,
unavailable through § 2255 motions; the true impediment
was the fact that the Supreme Court had not made
Apprendi retroactive, not the remedy by § 2255
motion). In addition, to the extent Amerson focuses upon
§ 2255, the Court notes that § 2255 is not
inadequate or unavailable because Amerson has already been
denied § 2255 relief or because he lacks permission to
file a second or successive § 2255 petition. See
Hill v. Morrison, 349 F.3d 1089, 1091 (8th Cir. 2003)
(internal citation omitted).
case, there is no “gap” in the system of
post-conviction relief rendering a writ of audita querela
available. The Sentencing Commission has carefully considered
which Guidelines amendments should have retroactive effect,
and has concluded that Amendment 790 does not. Allowing
Amerson to bypass the restrictions of § 1B1.10 simply by
invoking the writ of audita querela would effectively nullify
those restrictions and produce an absurd result. Because
another statute specifically addresses the particular issue
at hand, the All Writs Act does not apply, and a writ of
audita querela is unavailable. See Carlisle, 517
U.S. at 429; Feist, 346 Fed.Appx. 127;
Massey, 581 F.3d at 174.
has also filed a motion for reconsideration of this
Court's prior order directing him to pay the statutory
filing fee or move for leave to proceed in forma
pauperis. (Docket No. 5). The Court will grant the
motion to the extent Amerson seeks to be relieved of the
obligation to pay the statutory filing fee or ...