Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 4:90-cr-4010-WS-AK

LEONIDEZ MENDEZ-HINOJOSA,

Defendant.

___________________________/

REPORT AND RECOMMENDATION

This cause is before the Court on Defendant’s petition for writ of audita querela. Doc.

250. In 1990, Defendant was convicted of conspiracy to possess with intent to distribute 1000

kilograms or more of marijuana, reentry following deportation, and possession of firearm by a

prior convicted felon. Doc. 226. He was sentenced to 420 months on the drug count, 120

months on the reentry count, and 60 months on the firearm count, to run concurrently. Id. The

conviction and sentence were affirmed on appeal. Id. After the passage of the AEDPA,

Defendant timely sought § 2255 relief, and in a lengthy Report and Recommendation, the

magistrate judge recommended that the motion be denied. Id. The Court adopted the R&R and

denied the motion to vacate. Doc. 230. Defendant appealed, and the Court granted a certificate

of appealability on two issues related to the effectiveness of trial and appellate counsel. Doc.

238. The court of appeals found “no merit in Petitioner’s contentions” and affirmed. Doc. 247.

Case 4:90-cr-04010-WS-GRJ Document 251 Filed 09/11/08 Page 1 of 3
Page 2 of 3

Case No: 4:90-cr-4010-WS-AK

In 2005, Defendant sought leave of the court of appeals to file a second or successive

motion to vacate as required by § 2255. In his application, Defendant raised two issues which he

wanted to pursue: (1) whether the Court violated his Sixth Amendment right to trial by jury by

enhancing his sentence based on facts not proved to a jury beyond a reasonable doubt, and (2)

whether the Court violated his Fifth Amendment due process rights when it used the

preponderance of the evidence standard to enhance his sentence. Doc. 249. These claims were

based on United States v. Booker, 543 U.S. 220 (2005). The Eleventh Circuit denied the

application for leave to file a second or successive motion to vacate based on the fact that the

United States Supreme Court had not made Booker retroactive to cases on collateral review. Id.

On this occasion, Defendant seeks to raise the same Booker issues via a petition for a writ

of audita querela. Doc. 250. “Audita querela, Latin for ‘the complaint having been heard,’ was

an ancient writ used to attack the enforcement of a judgment after it was rendered.” United

States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005). Its use has been abolished in the civil

context, and, in the post-conviction context, it “may not be granted when relief is cognizable

under § 2255.” Id. at 1174-75. Where a federal prisoner attacks his sentence as violating the

United States Constitution, as in this case, “the proper avenue for relief is § 2255.” Id. at 1175. 

Furthermore, because Booker does not apply to cases on collateral review, as the Eleventh

Circuit advised, Defendant is not entitled to relief “however [the petition] is labeled.” 

Carrington v. United States, 503 F.3d 888, 891 (9th Cir. 2007). Consequently, the petition

should be denied in this case. 

Case 4:90-cr-04010-WS-GRJ Document 251 Filed 09/11/08 Page 2 of 3
Page 3 of 3

Case No: 4:90-cr-4010-WS-AK

To the extent that the petition is liberally construed as a § 2255 motion to vacate, it

should be denied as an unauthorized second or successive motion.

In light of the foregoing, it is respectfully RECOMMENDED that Defendant’s petition

for writ of audita querela, Doc. 250, be DENIED WITH PREJUDICE.

IN CHAMBERS at Gainesville, Florida, this 11th day of September, 2008.

 S/A. Kornblum ALLAN KORNBLUM

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and recommendations

within 15 days after being served with a copy of this report and recommendation. A party may

respond to another party’s objections within 10 days after being served with a copy thereof. Failure

to file specific objections limits the scope of review of proposed factual findings and recommendations.

Case 4:90-cr-04010-WS-GRJ Document 251 Filed 09/11/08 Page 3 of 3