2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-23-2006

USA v. Paster

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1468

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Recommended Citation

"USA v. Paster" (2006). 2006 Decisions. Paper 842.

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HPS-70 (June 2006) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 06-1468

________________

UNITED STATES OF AMERICA,

 vs.

MITCHELL F. PASTER,

 Appellant

____________________________________

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(M.D. PA. Crim. No. 96-cr-00221-1)

District Judge: Honorable Malcolm Muir

__________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6

June 2, 2006

BEFORE: SCIRICA, Chief Judge, WEIS and GARTH, Circuit Judges

(Filed: June 23, 2006)

_________________

OPINION

_________________

PER CURIAM.

Mitchell F. Paster, a prisoner, appeals the denial by the United States

District Court for the Middle District of Pennsylvania of his petition for writ of audita

querela.

Paster pled guilty to second degree murder in 1997 in District Court. Paster
2

successfully appealed his original sentence, resulting in his re-sentencing in 1999 to a

term of imprisonment of twenty-one years and ten months. In 2001, Paster filed a § 2255

motion, which the District Court denied in 2002. This Court denied a certificate of

appealability. The Supreme Court denied Paster’s petition for certiorari.

Paster now seeks re-sentencing pursuant to a petition for a writ of audita

querela, requesting relief pursuant to United States v. Booker, 543 U.S. 220 (2005). The

District Court treated the petition as a second or successive § 2255 motion, and denied it

because Paster failed to obtain prior authorization to file the motion from this Court. For

essentially the same reasons set forth by the District Court in its Order, we will summarily

affirm.

A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive

means to challenge collaterally a federal conviction or sentence. The All Writs Act is a

residual source of authority to issue writs in exceptional circumstances only. 

Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985). The

Court of Appeals for the Ninth Circuit has held, and we agree, that “[a] prisoner may not

circumvent valid congressional limitations on collateral attacks by asserting that those

very limitations create a gap in the postconviction remedies that must be filled by the

common law writs” such as audita querela. United States v. Valdez-Pacheco, 237 F.3d

1077 (9th Cir. 2001). Thus, we have held that section 2255 is not rendered “inadequate

or ineffective,” thereby enabling a prisoner to resort to coram nobis, by the mere fact that

he cannot meet the stringent standards for authorizing the filing of a second or successive
 1

 We note that, even if audita querela were otherwise available, Paster would not be

able to rely on Booker because that decision does not apply retroactively to cases on

collateral review. See Lloyd v. United States, 407 F.3d 608 (3d Cir. 2005); In re

Olopade, 403 F.3d 159 (3d Cir. 2005).

section 2255 motion. United States v. Baptiste, 223 F.3d 188, 189-90 (3d Cir. 2000) (per

curiam). The same reasoning applies to petitions for a writ of audita querela. See United

States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005) (writ of audita querela unavailable

where relief is cognizable under section 2255).1

A petitioner seeking to pursue a second or successive § 2255 motion in

District Court must obtain leave from this Court before doing so. See § 28 U.S.C. §§

2255 ¶ 8 & 2244. As the Court correctly determined, Paster’s petition constituted an

unauthorized second or successive § 2255 motion to vacate his sentence. The District

Court properly denied the § 2255 motion for lack of jurisdiction. See Robinson v.

Johnson, 313 F.3d 128 (3d Cir. 2002).

Because no substantial question is presented by this appeal, the District

Court’s judgment will be affirmed. See Third Circuit LAR 27.4 and I.O.P. 10.6