2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-22-2013

USA v. Jose Gonzalez-Rivera

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-2790

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GLD-388 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-2790

___________

UNITED STATES OF AMERICA

v.

JOSE GONZALEZ-RIVERA,

Appellant

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 92-cr-00055)

District Judge: Honorable Joel H. Slomsky

____________________________________

Submitted for Possible Summary Action 

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

August 15, 2013

Before: FUENTES, FISHER and VANASKIE, Circuit Judges

(Opinion filed: August 22, 2013)

_________

OPINION

_________

PER CURIAM
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Jose Gonzalez-Rivera appeals the denial of his application for writs of error coram 

nobis and audita querela by the United States District Court for the Eastern District of 

Pennsylvania. We will summarily affirm the District Court’s order.

I.

In 1993, the United States District Court for the Eastern District of Pennsylvania 

sentenced Gonzalez-Rivera to life imprisonment after he was found guilty of several 

drug-related offenses. On direct appeal, we affirmed all but one of his convictions and 

remanded for resentencing. See United States v. Quintero, 38 F.3d 1317, 1347-48 (3d 

Cir. 1994). On remand, the District Court resentenced him to thirty-six years’ of 

imprisonment. We then affirmed that new sentence. See United States v. GonzalezRivera, 29 F. App’x 848, 849-50 (3d Cir. 2002).

Thereafter, Gonzalez-Rivera filed a 28 U.S.C. § 2255 motion. The District Court 

denied the motion, holding that his claims were legally frivolous. We granted a 

certificate of appealability as to one of his claims, but ultimately upheld the District 

Court’s denial of relief. See United States v. Gonzalez-Rivera, 217 F. App’x 166, 167 

(3d Cir. 2007). Gonzalez-Rivera then petitioned for a writ of certiorari, which the 

Supreme Court denied. We have since denied his motion to recall the mandate, as well as 

his petition for a writ of mandamus, C.A. No. 12-4502. 

In May 2013, he filed a pro se petition seeking relief under the All Writs Act, 28 

U.S.C. § 1651, specifically the writs of error coram nobis and audita querela [hereinafter 

“petition”]. He argued that his sentence violates Alleyne v. United States, 133 S. Ct. 

2151 (2013), in that the quantity of the drugs was never established in his case beyond a 
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reasonable doubt, nor were all the elements found for a conviction on the continuing 

criminal enterprise (CCE) charge. Lastly, he claims that his indictment violated the 

Double Jeopardy Clause of the Fifth Amendment. The District Court denied his petition, 

and Gonzalez-Rivera now appeals.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of a district 

court’s order granting or denying a petition for a writ of coram nobis or audita querela is 

plenary. See United States v. Gamboa, 608 F.3d 492, 494 (9th Cir. 2010); cf. Grider v. 

Keystone Health Plan Cent., Inc., 500 F.3d 322, 328 (3d Cir. 2007) (exercising plenary 

review of injunctions under All Writs Act). If an appeal does not present a substantial 

question, we may summarily affirm the District Court’s decision. See LAR 27.4; I.O.P. 

10.6; United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000) (per curiam).

III.

It is clear from Gonzalez-Rivera’s petition that he is seeking to challenge the 

validity of his conviction by pointing to alleged errors that took place during trial and the 

investigation of his case. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is 

the exclusive means to collaterally challenge a federal conviction or sentence. Section 

2255 is not inadequate or ineffective so as to enable Gonzalez-Rivera to seek relief under 

the All Writs Act, Baptiste, 223 F.3d at 189-90, merely because he is unable to meet the 

stringent gatekeeping requirements for filing a second or successive § 2255 motion. 

The writ of error coram nobis, 28 U.S.C. § 1651(a), is appropriate when a 

petitioner is no longer in custody but suffers continuing consequences from an unlawful 
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conviction. Baptiste, 223 F.3d at 189. Similarly, the writ of audita querela survives only 

to the extent that it fills in gaps in the current system of post-conviction relief. United 

States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001). Gonzalez-Rivera is still 

in custody and must therefore look to § 2255 as the presumptive means of any relief. 

Baptiste, 223 F.3d at 189. Furthermore, Gonzalez-Rivera cannot invoke the writ of 

audita querela because his claims are cognizable under § 2255. See United States v. Holt, 

417 F.3d 1172, 1175 (11th Cir. 2005) (holding that the writ of audita querela is 

unavailable where relief is cognizable under § 2255). 

We decline to remand Gonzalez-Rivera’s motion for collateral relief to the District 

Court, as he requests, to be treated as an initial § 2255 motion. Gonzalez-Rivera’s first 

motion pursuant to § 2255 was adjudicated on the merits. Villaneuva v. United States, 

346 F.3d 55, 60 (2d Cir. 2003) (noting that a § 2255 motion is considered a prior 

application for purposes of 28 U.S.C. § 2244(b) only if it was adjudicated on the merits). 

Consequently, any future attempts to seek collateral relief via § 2255 must be authorized

by this Court. 28 U.S.C. § 2255(h); § 2244(B)(3)(A).

IV.

Accordingly, because this appeal does not present a substantial question, we will 

affirm the District Court’s order denying Gonzalez-Rivera’s petition for a writ of coram 

nobis and audita querela.