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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

UNITED STATES OF AMERICA

vs. Case Nos.: 3:99cr46/RV/EMT

 3:14cv639/RV/EMT

WILLIE JAMES GRIFFIN, JR.,

REPORT AND RECOMMENDATION

This matter is before the court upon Defendant’s “Motion for Vacatur of an Illegal Sentence

Due to a Lack of Jurisdiction Pursuant to 28 U.S.C. § 1651 and Audita Querela” (doc. 493). The

case was referred to the undersigned for the issuance of all preliminary orders and any

recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see

also 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(b). After a careful review of the record and the

arguments presented, it is the opinion of the undersigned that: (1) Defendant is not entitled to relief

pursuant to the All Writs Act, 28 U.S.C. § 1651; and (2) the court lacks jurisdiction to review

Defendant’s submission if it is construed as a § 2255 motion, and thus to the extent it is construed

as such the motion should be summarily dismissed.

BACKGROUND and ANALYSIS

 Defendant’s lengthy history of post-conviction motions has been summarized elsewhere and

need not be repeated herein (see doc. 436 at 1). Suffice to say that Defendant has already had one

section 2255 motion dismissed as successive (see docs. 352, 361, 374). Therefore, Defendant should

be aware that before a second or successive application for § 2255 relief is filed in the district court,

he must move in the appropriate court of appeals for an order authorizing the district court to

consider the application. 28 U.S.C. § 2244(b)(3) and § 2255(h); Felker v. Turpin, 518 U.S. 651, 116

S. Ct. 2333, 135 L. Ed. 2d 827 (1996); United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005);

Carter v. United States, 405 F. App’x 409 (11th Cir. 2010). This authorization is required even

where a defendant claims that his motion is based on the existence of a new rule of constitutional

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law, made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable. 28 U.S.C. § 2255(h)(2). 

Defendant apparently attempts to circumvent this procedural limitation on second or

successive motions by characterizing his submission as a petition for a writ of audita querela under

the All Writs Act, 28 U.S.C. § 1651. In Holt, 417 F.3d at 1172, the petitioner argued that a federal

court may vacate either a criminal conviction or a sentence pursuant to a writ of audita querela if

there is a legal objection that did not exist at the time judgment was entered, such as through a

change in intervening law. Id. at 1174. The petitioner in Holt argued that the district court had

exceeded its sentencing authority under Blakely v. Washington, 542 U.S. 296 (2004). Holt

maintained that because he could not have raised his claim until the Supreme Court decided 

Appendi v. New Jersey, 530 U.S. 466 (2000), and relief was not available to him under § 2255 or

§ 2241, a writ of audita querela was his only viable avenue of relief. After a review of the history

of the writ, the Eleventh Circuit held that a writ of audita querela may not be granted when relief is

cognizable under § 2255. Holt, 417 F.3d at 1175. Cognizable, however, is not tantamount to

“available.” The appellate court went on to construe Holt’s motion as one made pursuant to § 2255. 

It noted, however, that Holt had not obtained an order authorizing the district court to consider his

second and successive motion for § 2255 relief, and affirmed the district court’s denial of the

motion. Id. Like the defendant in Holt, Defendant in this case claims that his sentence is

unconstitutional under the Fifth and Sixth Amendments, and he seeks vacatur of his sentence based

on intervening Supreme Court case law, Alleyne v. United States, 133 S. Ct. 2151 (2013). The

holding in Holt is dispositive in this case. See also United States v. Mayne, 419 F. App’x 953 (11th

Cir. 2011) (affirming dismissal of a petition for writ of audita querela where claim was cognizable

under § 2255, citing Holt); United States v. Arevalo, 368 F. App’x 957 (11th Cir. 2010) (same);

United States v. Davis, 352 F. App’x 314 (11th Cir. 2009) (same). Therefore, Defendant’s request

for the issuance of a writ of audita querela is due to be denied and, because this court lacks

jurisdiction to consider a second or successive motion to vacate pursuant to 28 U.S.C. § 2255,

Defendant’s motion must be dismissed. 

Case Nos.: 3:99cr46/RV/EMT; 3:14cv639/RV/EMT

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CERTIFICATE OF APPEALABILITY

Section 2255 Rule 11(a) provides that “[t]he district court must issue or deny a certificate

of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued

“the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C.

§ 2253(c)(2).” A timely notice of appeal must still be filed, even if the court issues a certificate of

appealability. § 2255 11(b).

After review of the record, the court finds no substantial showing of the denial of a

constitutional right. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483–84 (2000) (explaining how

to satisfy this showing) (citation omitted). Therefore, it is also recommended that the district court

deny a certificate of appealability in its final order.

The second sentence of new Rule 11(a) provides: “Before entering the final order, the court

may direct the parties to submit arguments on whether a certificate should issue.” If there is an

objection to this recommendation by either party, that party may bring this argument to the attention

of the district judge in the objections permitted to this report and recommendation.

Accordingly, it is respectfully RECOMMENDED that:

1. Defendant’s petition for a writ of audita querela be DENIED, as he is not entitled to

challenge his sentence by means of this writ. 

2. Construed as a motion to vacate pursuant to 28 U.S.C. § 2255 (doc. 493), the instant

motion be DENIED and DISMISSED.

3. A certificate of appealability be DENIED.

At Pensacola, Florida, this 12th day of December 2014.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

CHIEF UNITED STATES MAGISTRATE JUDGE

Case Nos.: 3:99cr46/RV/EMT; 3:14cv639/RV/EMT

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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

fourteen days (14) after being served a copy hereof. Any different deadline that may appear

on the electronic docket is for the court’s internal use only, and does not control. A copy of

any objections shall be served upon any other parties. Failure to object may limit the scope

of appellate review of factual findings. See 28 U.S.C. § 636; United States v. Roberts, 858 F.2d

698, 701 (11th Cir. 1988).

Case Nos.: 3:99cr46/RV/EMT; 3:14cv639/RV/EMT

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