1. Black’s Law Disctionary (Sixth Edition) defines Audita

querela as follows:

The name of a common law writ constituting the 

initial process in an action brought by a judgment

defendant to obtain relief against the consequences

of the judgment on account of some matter of defense

or discharge arising since its rendition and which

could not be taken advantage of otherwise. Barnett v.

Gitlitz, 290 Ill.App. 212, 8 N.E.2d 517, 520. May

also lie for matters arising before judgment

where defendant had no opportunity to raise such

matter in defense. Louis E. Bower, Inc. v.

Silverstein, 298 Ill.App. 145, 18 N.e.2d 385, 387.

 This writ has been abolished in most states that

have adopted Rules of Civil Procedure, being

supplanted by motion for relief from judgment. Rule

of Civil Procedure 60(b).

 UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

vs. : No. 4:CR-96-221

:

MITCHELL FREDERICK PASTER : (Judge Muir)

ORDER

January 23, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The background of this case is set forth in prior

orders of court and we will not repeat that background other than

as needed to address a document filed by Paster on January 19,

2006, entitled “Petition for Writ of Habeas Corpus Petition for

Writ of Audita Querela1

 Motion to Preserve Rights Under Habeas

Corpus.” 

Paster killed his wife, Dr. Margaret Bostrom, by

stabbing her sixteen times with a knife. On November 19, 1997,

Paster entered a plea of guilty to second degree murder. Paster

Case 4:96-cr-00221-MWB Document 258 Filed 01/23/06 Page 1 of 4
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was originally sentenced on May 4, 1998, to a term of

imprisonment of 30 years and 5 months. Paster appealed that

sentence, the Court of Appeals determined the sentence to be

excessive and remanded for resentencing, and on September 22,

1999, Paster was resentenced to a term of imprisonment of 21

years and 10 months. On March 22, 2000, the Court of Appeals

affirmed that sentence. 

On June 29, 2001, Paster filed a motion to vacate, set

aside or correct sentence pursuant to 28 U.S.C. § 2255. A

evidentiary hearing commenced on May 1, 2002, and concluded on

May 29, 2002. On June 10, 2002, we issued a 55-page opinion and

order in which we denied Paster's motion filed pursuant to 28

U.S.C. § 2255. 

On July 22, 2002, Paster filed a notice of appeal. By

order of July 24, 2002, we denied Paster a certificate of appeal

ability because he had failed to make a substantial showing of

the denial of a constitutional right. Paster than requested the

Court of Appeals to issue a certificate of appeal ability. On

May 12, 2003, the Court of Appeals issued an order stating in

toto as follows:

The foregoing request for a certificate of 

appeal ability is denied because, for substantially

the reasons given by the District Court in denying

Appellant’s section 2255 motion, we conclude that

Appellant has not made a substantial showing of the

denial of a constitutional right. 28 U.S.C. §

2253(c)(2). The motion for counsel and transcripts

is denied.

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2. 28 U.S.C. § 2253 states in relevant part as follows:

(c)(1) Unless a circuit justice or judge issues a

certificate of appeal ability an appeal may not be

taken to the court of appeals from --

**** * * *

(B) the final order in a proceeding under section

2255.

 (2) A certificate of appeal ability may issue

 under paragraph (1) only if the applicant has made a

 substantial showing of the denial of constitutional

 right.

3

Doc. 249, Order of United States Court of Appeals.2

 Paster then

filed a petition for writ of certiorari with the United States

Supreme Court. On February 22, 2005, the Supreme Court denied

that petition.

Paster’s most recent filing is in effect a successive

28 U.S.C. § 2255 motion. Paster contends that he should be

resentenced under the recent decision of the Supreme Court in

United States v. Booker, 125 S.Ct. 738 (2005). Paster requests

that we vacate the sentence imposed on September 22, 1999, and

resentence him to a term of imprisonment of no more than 10 years

and 1 month.

It is clear that Booker cannot be retroactively applied

to Paster’s case. The Court of Appeals for the Third Circuit has 

held that Booker, which recognized that Apprendi and Blakely

applied to the United States Sentencing Guidelines but also ruled

that the Guidelines are now only advisory, does not apply

retroactively to cases on collateral review. See Lloyd v. United

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States, 407 F.3d 608, 613-15 (3d Cir. 2005). Moreover, 28 U.S.C.

§ 2244 states in relevant part as follows:

(a) No circuit or district judge shall be required

to entertain an application for a writ of habeas

corpus to inquire into the detention of a person

pursuant to a judgment of a court of the United States

if it appears that the legality of such detention has

been determined by a judge or court of the United 

States on a prior application for writ of habeas

corpus, except as provided in section 2255.

Section 2255 requires that before a second section 2255 motion

can be filed in the district court, the movant must obtain

approval from “a panel of the appropriate court of appeals.”

The legality of Paster’s detention was determined by us

in our order of June 10, 2002, when we denied his section 2255

motion. Furthermore, Paster has not obtained approval from the

Court of Appeals for this circuit to file a second section 2255

motion. Consequently, Paster’s so-called “Petition for Writ of

Habeas Corpus Petition for Writ of Audita Querela Motion to

Preserve Rights Under Habeas Corpus” will be denied.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

Paster’s document entitled “Petition for Writ of Habeas 

Corpus Petition for Writ of Audita Querela Motion to Preserve

Rights Under Habeas Corpus” (Doc. 257) is denied.

 

 s/Malcolm Muir 

MUIR, U.S. District Judge

MM:gs

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