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UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

UNITED STATES OF AMERICA,

v. Case No. 4:92cr4013-WS

Case No. 4:09cv223-WS/WCS

ERROL MORRISON, 

Defendant.

 

REPORT AND RECOMMENDATION TO DISMISS PETITION

Defendant Morrison filed a document labeled a "WRIT OF ERROR AUDITA

QUERELA," providing in the space for the title, "THIS IS NOT A MOTION PURSUANT

TO TITLE 28 U.S.C. § 2255." Doc. 1891. It was referred to the undersigned for review. 

Doc. 1893. 

In his pleading, "Defendant raises, as a matter of law, objections against the

consequences of a prior judgment of this Court rendered on May 13, 1993, Case No.

TCR 92-04013-WS." Id., p. 1. Defendant claims that the rationale of United States v.

Booker, 543 U.S. 200, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), applies here. Id., pp. 3-

15. For relief, he seeks correction of his PSR, correction of the judgment to reflect an 
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1

 In Apprendi the Court confirmed (as it had previously implied) that, "[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-

63, 147 L.Ed.2d 435 (2000). In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,

2537, 159 L.Ed.2d 403 (2004), the Court applied Apprendi to a sentence enhanced

under state sentencing guidelines; and in Booker, the Court applied Apprendi and

Blakely to the Federal Sentencing Guidelines.

Case Nos. 4:92cr4013-WS and 4:09cr223-WS/WCS

adjusted term of imprisonment and supervised release, and to have the option of

resentencing under the guidelines, now advisory under Booker. Id., p. 20. 

Defendant is a federal prisoner challenging the judgment and sentence, and is

not entitled to a writ of audita querela. United States v. Holt, 417 F.3d 1172, 1174-75

(11th Cir. 2005). In Holt, the prisoner filed a motion for writ of audita querela seeking

relief under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 2537, 159 L.Ed.2d

403 (2004), the case following Apprendi and preceding Booker.

1

 Mr. Holt, like

Defendant Morrison, argued that the court could vacate his conviction or sentence

pursuant to a writ of audita querela as this was a legal objection which did not exist at

the time the judgment was entered. 417 F.3d at 1174. The court held:

[A] writ of audita querela may not be granted when relief is cognizable

under § 2255. Because, in the instant case, Holt is collaterally attacking

his sentence as violating the United States Constitution, the proper

avenue of relief is § 2255. See 28 U.S.C. § 2255. 

Id., p. 1175. Though the court could liberally construe the motion as a § 2255 motion,

the district court lacked jurisdiction to consider it because authorization for filing had not

been granted by the Eleventh Circuit. Id. (citations omitted). 
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2

 See docs. 1214, 1217, and 1218 (report and recommendation as adopted by

the court and judgment entered on July 2, 2003). A certificate of appealability for

appeal was granted but the denial of § 2255 relief affirmed. Docs. 1248, 1270, and

1280. 

3

 The opinion was affirmed (but with a different analysis of the Fed.R.Civ.P. 60

issue) in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). 

See Jackson v. Crosby, 437 F.3d 1290, 1294-95 and n. 6 (11th Cir. 2006) (noting that

the Supreme Court did not disturb the full en banc decision in Gonzalez).

Case Nos. 4:92cr4013-WS and 4:09cr223-WS/WCS

Here, too, Defendant Morrison has already been denied § 2255 relief,2 and must

obtain authorization from the Eleventh Circuit before filing a second or successive §

2255 motion. § 2255 ¶ 8 (referencing § 2244); § 2255 Rule 9 ("[b]efore presenting a

second or successive motion, the moving party must obtain an order from the

appropriate court of appeals authorizing the district court to consider the motion, as

required by 28 U.S.C. § 2255, para. 8."). 

As authorization has not been granted, this court lacks jurisdiction. The

restrictions on filing a second or successive motion can not "be evaded by the simple

expedient of labeling second or successive filings to be something they are not." 

Gonzalez v. Secretary for the Dept. of Corrections, 366 F.3d 1253, 1277, n. 10 (11th

Cir. 2004) (en banc).3

Defendant also claims that since the Booker opinion "created a new

interpretation of the guidelines, effect of the finality of the judgment can be appealed

and modified under Title 18 U.S.C. § 3582(b)(3) and 3742(a)(2) based on the

mandatory application of the sentencing guidelines." Doc. 1891, p. 15. 

These sections do not authorize review. Section 3742, governing review of a

sentence on direct appeal, is inapplicable here, as this case is many years past the
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4

 In Booker, the Court severed § 3742(e) and imposed a "reasonableness"

standard of review for guidelines sentences. See Cunningham v. California, 549 U.S.

270, 286-287, and n. 11,127 S.Ct. 856, 867, 166 L.Ed.2d 856 (2007) (discussing

Booker). 

5

 Kimbrough v. United States, U.S. , 128 S.Ct. 558, 169 L.Ed.2d 481

(2007). 

Case Nos. 4:92cr4013-WS and 4:09cr223-WS/WCS

direct appeal.4 Section § 3582(b)(3) provides that although a sentence may be

"appealed and modified, if outside the guideline range, pursuant to the provisions of

section 3742," the judgment still "constitutes a final judgment for all other purposes." lt

has no apparent relevance here. 

It may be that Defendant intended to cite § 3582(c)(3), regarding modification of

an imposed term of imprisonment based on a retroactive amendment to the sentencing

guidelines. Even so, Defendant is not entitled to relief. See United States v. Melvin,

556 F.3d 1190, 1192-93 (11th Cir.), cert. denied, 129 S.Ct. 2382 (2009) (Booker and

Kimbrough5 do not apply in § 3582(c)(2) proceedings); United States v. Moreno, 421

F.3d 1217, 1220-21 (11th Cir. 2005) (§ 3582(c)(2) did not provide a jurisdictional basis

to reduce sentence; "Booker is a Supreme Court decision, not a retroactively applicable

guideline amendment by the Sentencing Commission" and therefore "inapplicable to §

3582(c)(2) motions."). See also 421 F.3d at 1220 (noting that Booker does not apply

retroactively on collateral review, and the Supreme Court has not made it retroactive

"for purposes of authorizing a second or successive § 2255 motion.") (citations omitted). 
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Case Nos. 4:92cr4013-WS and 4:09cr223-WS/WCS

It is therefore respectfully RECOMMENDED that Defendant Morrison's petition

for writ of audita querela (doc. 1891) be SUMMARILY DISMISSED as an attempt to file

an unauthorized second or successive § 2255 motion. 

IN CHAMBERS at Tallahassee, Florida, on July 10, 2009.

 S/ William C. Sherrill, Jr. 

WILLIAM C. SHERRILL, JR.

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.