IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS 

 DALLAS DIVISION 

JOSHUA WILLIAM JACKSON, ) 

 ID # 54191-177, ) 

 Movant, ) 

 ) No. 3:22-CV-778-L-BH 

vs. ) No. 3:16-CR-196-L(1) 

 ) 

UNITED STATES OF AMERICA, ) 

 Respondent. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

 Based on the relevant filings and applicable law, the Motion for Order Vacating Judgement 

[sic] Order or Sentence Under Common Law Writ of Audita Querela/ Coram Nobis/ Coram Vobis 

or Alternative Writs Under the All Writs Act 28 U.S.C. § 1651, received on April 5, 2022 (doc. 3), 

should be construed as a successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct a 

federal sentence and TRANSFERRED to the United States Court of Appeals for the Fifth Circuit. 

I. BACKGROUND 

Joshua William Jackson (Movant) pled guilty under a plea agreement to use of a facility of 

interstate commerce in aid of a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3) and 

(A), illegal receipt of a firearm by a person under indictment in violation of 18 U.S.C. §§ 922(n) 

and 924(a)(1)(D), and cyberstalking in violation of 18 U.S.C. §§ 2261A(2) and (b)(5). (See No. 

3:16-CR-196-L(1), docs. 53, 57, 60.)2

 By judgment dated August 17, 2017, he was sentenced to 

a total term of 156 months’ imprisonment, to be followed by a three-year term of supervised 

release. (See id., doc. 111 at 2-3.) He was also ordered to pay $839 in restitution and a $300 

1

 By Special Order No. 3-251, this habeas case has been automatically referred for findings, conclusions, and 

recommendation. 

2

 Unless otherwise indicated, all document numbers refer to the docket number assigned in this civil action, 3:22-

CV778-L-BH. 

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special assessment. (See id., doc. 111 at 7.) On September 21, 2018, the United States Court of 

Appeals for the Fifth Circuit (Fifth Circuit) affirmed the judgment on direct appeal. See United 

States v. Jackson, 741 F. App’x 225, 227 (5th Cir. 2018). He did not file a petition for a writ of 

certiorari with the Supreme Court. 

Movant filed a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 on 

July 11, 2019, which was dismissed with prejudice on May 31, 2021. (See No. 3:19-CV-1664-LBH, docs. 2, 60-61.) The Fifth Circuit denied a certificate of appealability on December 16, 2021. 

(See id., docs. 66-67.) Since filing his § 2255 motion, Movant has also filed several motions for a 

reduction of sentence under 18 U.S.C. § 3582(c), none of which have been granted. (See No. 3:16-

CR-196-L(1), docs. 162, 174, 189, 192, 202, 205, 208, 210-12, 217, 221.) He now seeks to vacate 

the criminal judgment under various writs. 

II. JURISDICTION 

“Federal courts are courts of limited jurisdiction. They possess only that power authorized 

by Constitution and statute, which is not to be expanded by judicial decree.” Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (internal citations omitted). They “must 

presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal 

jurisdiction rests on the party seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 

912, 916 (5th Cir. 2001). Courts have “a continuing obligation to examine the basis for their 

jurisdiction.” MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). 

A. Coram Nobis 

A writ of error coram nobis is a remedy of last resort for persons who are no longer in 

custody pursuant to a criminal conviction and therefore are unable to pursue direct review or seek 

collateral relief by filing a petition for a writ of habeas corpus. See United States v. Hatten, 167 

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F.3d 884, 887 n.6 (5th Cir. 1999). Movant is still in custody, so this Court lacks jurisdiction to 

grant coram nobis relief. United States v. Urdiales Garcia, 442 F. App’x 935, 936 (5th Cir. 2011); 

see also United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004). 

B. Audita Querela 

“The writ of audita querela permits a defendant to obtain relief against a judgment because 

of some legal defense arising after the judgment.” United States v. Banda, 1 F.3d 354, 356 (5th 

Cir. 1993), abrogated in part on other grounds by Padilla v. Kentucky, 559 U.S. 356 (2010). It 

“can only be applied to rectify a judgment which, though correct when rendered, has since become 

infirm.” United States v. Miller, 599 F.3d 484, 490 (5th Cir. 2010). As noted in Banda and restated 

in Miller, however, “[i]t is an open question whether the . . . writ survives as a post-conviction 

remedy.” Banda, 1 F.3d at 356; see also Miller, 599 F.3d at 488 (“the writ of audita querela might

also survive in criminal adjudications, if there is a gap for it to fill.”) (emphasis in original). 

Assuming the writ survives, it is available only “where there is a legal objection to a judgment 

which has arisen subsequent to that judgment.” Miller, 599 F.3d at 488. “Purely equitable grounds 

for relief do not justify the issuance of a writ of audita querela.” Id. In addition, “the writ is only 

available where the legal objection raised cannot be brought pursuant to any other post-conviction 

remedy.” Id.

Here, Movant has not alleged that the judgment was correct when rendered, but has now 

become infirm, as required to show entitlement to a writ of audita querela. See Miller, 599 F.3d 

at 490; Brown v. Chandler, No. 4:14-CV-559-A, 2014 WL 11514275, at *2 (N.D. Tex. Aug. 19, 

2014) (finding that the writ of audita querela provided no relief where the petitioner failed to 

allege that the sentencing court’s judgment was correct when rendered, but subsequently became 

infirm), aff’d, 606 F. App’x 267 (5th Cir. 2015). To the contrary, he alleges that the “District 

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Court committed both substantial and procedural error when despite [Movant’s] clear and accurate 

objections during the Pre-Sentence Report and at the Sentencing Hearings, the Court failed to 

review the charging documents failing to follow the application note 2 of the United States 

Sentencing Guideline §2E1.2 and failing to find ANY ‘Most Analogous Offense’ to Texas Penal 

Code § 48.02 in tern [sic] selecting an otherwise inapplicable Guidelines range.” (doc. 3 at 4-5.) 

Any writ of audita querela challenging his sentence in the underlying criminal case is 

inappropriate and unavailable because he clearly contends that the judgment was infirm at the time 

it was rendered. See Miller, 599 F.3d at 489 (holding that the defendant had no viable case for a 

writ of audita querela where his arguments indicated that the judgment was infirm at the time it 

was rendered due to ineffective assistance of counsel); United States v. Harris, 310 F. App’x 705, 

706 (5th Cir. 2009) (holding that a claim that fines should have been concurrent arose at the time 

of the judgment and cannot be raised in a writ of audita querela). The writ of audita querela is 

not available to Movant.3

 

C. Successive § 2255 Motion

Because Movant challenges the legality of his conviction and sentence and seeks the 

reduction of his “current term of imprisonment from 156 months to 60 months,” (doc. 3 at 9), the 

petition is properly construed as a § 2255 motion to vacate, set aside, or correct a federal sentence.4 

3 To the extent Movant argues that his claims cannot be raised under any other post-conviction remedy, other avenues 

are available to him, and he has pursued them. That his claims have been unsuccessful does not render the remedies 

unavailable, and a writ of audita querela is also not available to Movant on this basis. See Miller, 599 F.3d at 488; 

United States v. Schanck, 774 F. App’x 239, 239 (5th Cir. 2019) (“The fact that a movant cannot meet the requirements 

of § 2255 does not render the § 2255 remedy unavailable.”) (citing Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 

2000) (per curiam)); Lopez v. United States, No. 4:18cv252, 2018 WL 9371563, at * 2 (E.D. Tex. Jun. 7, 2018) 

(“Although Petitioner argues a § 2255 motion would be untimely and the issues he raises are not cognizable under § 

2255, case law makes it clear that simply because Petitioner may not ultimately prevail, does not allow him to 

circumvent the § 2255 motion.”). 

4

 Movant alleges the following grounds: 

(1) The District Court committed a clear error in calculating the sentence in light of intervening 

law or facts committed in applying the Sentencing Guidelines in violation of procedural due 

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See Tolliver, 211 F.3d at 877-78 (holding that § 2255 provides the primary means of collaterally 

attacking a federal conviction and sentence and relief is reserved for errors that occurred at trial or 

sentencing). 

Movant previously filed a § 2255 motion. A subsequent § 2255 motion to vacate is 

considered second or successive when it: “1) raises a claim challenging the petitioner’s conviction 

or sentence that was or could have been raised in an earlier [motion to vacate]; or 2) otherwise 

constitutes an abuse of the writ.” United States v. Orozco-Ramirez, 211 F.3d 862, 867 (5th Cir. 

2000) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). Under Orozco-Ramirez, Movant 

was required to present all available claims related to his conviction or sentence in his first motion 

to vacate. This “‘requirement serves the singularly salutary purpose of forcing federal habeas 

petitioners to think through all potential post-conviction claims and to consolidate them for a 

unitary presentation to the district court.’” Id. at 870-71 (quoting Pratt v. United States, 129 F.3d 

54, 61 (1st Cir. 1997)). 

Movant challenges the same conviction as in his prior § 2255 motion; he raises claims that 

he did or could have raised in his first motion, and he also references the existence of “intervening 

law and facts.” (doc. 3 at 4.) His motion is properly construed as a successive motion within the 

meaning of § 2255, and the determination of whether Movant may file a successive petition “must 

be made by a three-judge panel of a United States court of appeals before a motion is filed in the 

district court.” United States v. Ornelas-Castro, No. 3:07-CR-190-K, 2019 WL 6135156, at *2 

process; 

(2) The District Court committed a procedural error in incorrectly interpreting a fact or 

circumstance resulting in the misapplication of incorrect application of the United States 

Sentencing Guidelines rending the Sentence fundamentally unfair in violation of Procedural 

Due Process Rights. 

(doc. 3 at 4.) 

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(N.D. Tex. Nov. 18, 2019) (citing 28 U.S.C. §§ 2244(b)(3), 2255(h)); see also, e.g., United States 

v. Johnson, 303 F. App’x 241, 242-43 (5th Cir. 2008) (affirming a district court’s dismissal as a 

successive writ a motion seeking a reduction of sentence under 18 U.S.C. § 3742 and the federal 

rules of criminal procedure where the movant had already filed a § 2255 motion). 

When a motion to vacate is second or successive, the movant must seek an order from the 

Fifth Circuit that authorizes this Court to consider it. See 28 U.S.C. § 2244(b)(3)(A) (made 

applicable to motions to vacate by § 2255). The Fifth Circuit “may authorize the filing of a second 

or successive application only if it determines that the application makes a prima facie showing 

that the application satisfies the requirements of [§ 2244(b)].” Id. § 2244(b)(3)(C). To present a 

claim in a second or successive application that was not presented in a prior application, the 

application must show that it is based on: “(1) newly discovered evidence that, if proven and 

viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing 

evidence that no reasonable factfinder would have found the movant guilty of the offense; or (2) a 

new rule of constitutional law, made retroactive to cases on collateral review by the Supreme 

Court, that was previously unavailable.” 28 U.S.C. § 2255(h). 

Because the Fifth Circuit has not issued an order authorizing the district court to consider 

a successive § 2255 motion, this Court lacks jurisdiction to consider Movant’s second § 2255 

motion, and it is subject to dismissal. See United States v. Fulton, 780 F.3d 683, 686 (5th Cir. 

2015). “Alternatively, a district court may transfer a petition lacking authorization to [the Fifth 

Circuit] for want of jurisdiction upon a finding that the petition is successive.” Id. Here, the 

motion should be transferred. 

III. RECOMMENDATION 

 The Motion for Order Vacating Judgement [sic] Order or Sentence Under Common Law 

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Writ of Audita Querela/ Coram Nobis/ Coram Vobis or Alternative Writs Under the All Writs Act 

28 U.S.C. § 1651, received on April 5, 2022 (doc. 3), should be construed as a successive 28 U.S.C. 

§ 2255 motion to vacate, set aside, or correct a federal sentence and TRANSFERRED to the 

United States Court of Appeals for the Fifth Circuit under Henderson v. Haro, 282 F.3d 862, 864 

(5th Cir. 2002), and In re Epps, 127 F.3d 364, 365 (5th Cir. 1997). 

SIGNED this 13th day of April, 2022. 

INSTRUCTIONS FOR SERVICE AND 

NOTICE OF RIGHT TO APPEAL/OBJECT 

 A copy of these findings, conclusions and recommendation shall be served on all parties in 

the manner provided by law. Any party who objects to any part of these findings, conclusions and 

recommendation must file specific written objections within 14 days after being served with a 

copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must 

identify the specific finding or recommendation to which objection is made, state the basis for the 

objection, and specify the place in the magistrate judge’s findings, conclusions and 

recommendation where the disputed determination is found. An objection that merely incorporates 

by reference or refers to the briefing before the magistrate judge is not specific. Failure to file 

specific written objections will bar the aggrieved party from appealing the factual findings and 

legal conclusions of the magistrate judge that are accepted or adopted by the district court, except 

upon grounds of plain error. See Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 

(5th Cir. 1996). 

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