United States Court of Appeals

for the Fifth Circuit ____________

No. 23-10690

____________

United States of America, 

Plaintiff—Appellee, 

versus

Shabbar Rafiq, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:16-CR-243-3 

______________________________

Before King, Jones, and Oldham, Circuit Judges.

Per Curiam:*

Shabbar Rafiq appeals from the district court’s denial of his motion 

for a writ of audita querela. We AFFIRM. 

I.

In 2016, Rafiq pleaded guilty to conspiracy to distribute synthetic 

cannabinoids. See 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(C). In a signed factual 

resume, Rafiq stipulated that certain assets (including bank deposits, a 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

February 12, 2024

Lyle W. Cayce

Clerk

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significant amount of currency, a luxury sedan, and four gold bars) would be 

forfeited to the United States Government as proceeds of the offense. See 21 

U.S.C. § 853(a). But when the presentence report listed that property as 

subject to forfeiture, defense counsel objected, arguing that the forfeited 

assets did not belong to Rafiq. The probation officer clarified that, while Rafiq

had placed the items in others’ names, he still had interests in and controlled

the assets. Rafiq’s counsel then withdrew all of his forfeiture-related

objections. 

Around the same time, the Government filed a motion for preliminary 

order of forfeiture. The Government sent the motion to Rafiq’s trial counsel 

and requested a conference; in response, counsel stated that he was not 

Rafiq’s “civil lawyer.” The district court granted the motion. At the 

subsequent sentencing hearing, Rafiq’s counsel appeared to argue an 

unrelated objection. The district court sentenced Rafiq to 144 months of 

imprisonment. The court also pronounced a judgment of forfeiture. 

Rafiq appealed. With the aid of new counsel, he argued that the 

forfeiture order should be vacated because he was constructively denied 

counsel during his criminal forfeiture proceedings. See United States v. 

Cronic, 466 U.S. 648 (1984).A panel of this court affirmed the district court’s 

judgment. See United States v. Rafiq, 745 F. App’x 241 (5th Cir. 2018) (per 

curiam).

Rafiq then filed a motion to vacate his sentence under 28 U.S.C. 

§ 2255.. He argued, inter alia, that his judgment should be vacated because 

he was denied the right to counsel throughout his forfeiture proceedings. As 

a part of its response, the Government provided an affidavit from Rafiq’s trial 

counsel, who stated that he “very clearly indicated” that he did not handle 

the “forfeiture matters.” ROA.20-11168.145.

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The district court denied Rafiq’s § 2255 motion, and this court later 

affirmed that denial. See United States v. Rafiq, 2022 WL 2387348 (5th Cir. 

July 1, 2022). Later, this court denied Rafiq’s application to file a second and 

successive § 2255 motion.

Finally, Rafiq filed a motion for writ of audita querela under the All 

Writs Act. See 28 U.S.C. § 1651(a). He claimed that the affidavit of his trial 

counsel demonstrates a denial of counsel during his forfeiture proceedings. 

Since the affidavit was submitted after his direct appeal, Rafiq argued that the

initial judgment, though correct when rendered, became infirm through the

later discovery of a Sixth Amendment violation. Rafiq asked the district court 

to grant his motion for writ of audita querela and overturn his earlierforfeiture 

judgment.

The district court denied Rafiq’s motion for writ of audita querela. It

reasoned that Rafiq “failed to identify a gap in the post-conviction relief 

system” because he “challenged the forfeiture order based on denial of 

counsel on direct appeal,” noting that a forfeiture judgment “must be 

challenged on direct appeal or not at all.” ROA.689–90 (quoting Young v. 

United States, 489 F.3d 313, 315 (7th Cir. 2007) (internal quotation marks 

omitted)).

Rafiq timely appealed. Our review is de novo. See United States v. 

Whitehead, 449 F. App’x 326, 326 (5th Cir. 2011).

II.

Audita querela is a common-law writ that dates back to the reign of 

Edward III. See United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010). 

There is some debate over the exact content of the writ. Cf. Klapprott v. 

United States, 335 U.S. 601, 614 (1949) (op. of Black, J.) (“[F]ew courts ever 

have agreed as to what circumstances would justify relief under these old 

remedies.”). But it appears that the writ was used by judgment debtors to 

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escape the execution of a judgment on the grounds of post-judgment release 

or discharge. See 3 William Blackstone, Commentaries *404–05; 

see also Audita Querela, Black’s Law Dictionary (9th ed. 2009). It is 

distinguished from coram nobis, in that “a writ of coram nobis attacks a 

judgment that was infirm at the time it was rendered for reasons that later 

came to light, while a writ of audita querela is used to challenge a judgment 

that was correct at the time it was rendered but which is made infirm by 

matters that arose after its rendition.” Miller, 599 F.3d at 487 (citation 

omitted); see also United States v. Ayala, 894 F.2d 425, 429 (D.C. Cir. 1990)

(observing that “the distinction between audita querela and other forms of 

postconviction relief lies not in the character of the grounds for voiding the 

judgment, but rather in the timing of the occurrence of these grounds.”

(emphases in original and citations omitted)).

In 1948, Rule 60 of the Federal Rules of Civil Procedure formally

abolished the writ of audita querela along with other common-law writs. See 

Fed. R. Civ. P. 60(b) (1948). But in United States v. Morgan, 346 U.S. 502 

(1954), the Supreme Court preserved the writ of coram nobis in the criminal 

setting by reference to the All Writs Act. See 28 U.S.C. § 1651(a). Neither 

the Supreme Court nor our court has held that audita querela likewise 

survives in criminal cases. See Miller, 599 F.3d at 487–88 (“[W]e have, as 

have several other circuits, acknowledged, with some reservation, that the 

writ of audita querela might also survive in criminal adjudications, if there is a 

gap for it to fill.” (citations omitted)). But see id. at 488 (“We have yet to 

encounter a case that has required us to decide squarely whether or not the 

writ of audita querela survives in criminal cases.”).

But even assuming audita querela is theoretically available in criminal 

cases, it provides a “slender reed upon which to lean.” United States v. 

Banda, 1 F.3d 354, 356 (5th Cir. 1993). It theoretically might help a prisoner 

who brings (1) a legal objection that (2) arose after a judgment that (3) was 

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initially correct, assuming the (4) legal objection could not be brought

through another post-conviction remedy. See Miller, 599 F.3d at 488; United 

States v. Reyes, 945 F.2d 862, 865–66 (5th Cir. 1991).

Plainly, Rafiq cannot meet that theoretical standard. Even if Rafiq was 

denied counsel during his forfeiture proceedings, no relevant “gap exists in 

the system of federal post-conviction remedies.” Miller, 599 F.3d at 488

(citation omitted).

AFFIRMED.

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