FILED

United States Court of Appeals

Tenth Circuit

November 22, 2011

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTONIUS HEIJNEN,

Petitioner - Appellant,

No. 11-2122

(D.C. No. 1:11-CV-00447-JB-LFG)

(D. New Mexico)

v.

UNITED STATES OF AMERICA,

Respondent - Appellee.

ORDER AND JUDGMENT*

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

Petitioner Antonius Heijnen filed a petition under 28 U.S.C. § 1651 for

either a writ of coram nobis or a writ of audita querela, seeking reversal and

expungement of his federal-court convictions on several charges. Although the

petition also stated that he sought “settlement for fraud by Government,” R. at 40,

he was not requesting that relief in this action, saying that he “will, ultimately,

pursue his remedies for damages in an applicable court of law,” id. at 12. The

*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 
district court dismissed the petition for lack of jurisdiction. We affirm the

dismissal. Petitioner failed to show that his remedy under 28 U.S.C. § 2255 was

inadequate or ineffective. 

I. BACKGROUND

In March 2005 a jury of the United States District Court for the District of

New Mexico found Petitioner guilty on one count of conspiracy in violation of

18 U.S.C. § 371; one count of wire fraud in violation of 18 U.S.C. § 1343; three

counts of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(I); and one

count of money laundering in violation of 18 U.S.C. § 1957. He appealed, and

this court affirmed the conviction. See United States v. Heijnen, 215 F. App’x

725 (10th Cir. 2007), cert. denied, 552 U.S. 1051 (2007). Petitioner then filed a

petition for a writ of error coram nobis in the district court. The court entered an

order providing Petitioner the opportunity to withdraw his petition rather than

having it recharacterized as a motion under 28 U.S.C. § 2255. Petitioner did not

withdraw it; the court recharacterized it as a § 2255 motion and dismissed it as

untimely. Petitioner appealed that dismissal but then voluntarily dismissed his

appeal. He then petitioned the district court for either a writ of error coram nobis

or a writ of audita querela, which the court denied. He now appeals.

II. DISCUSSION

Contrary to Petitioner’s suggestion, “[t]he exclusive remedy for testing the

validity of a judgment and sentence, unless it is inadequate or ineffective, is that

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provided for in 28 U.S.C. § 2255.” Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir. 1996) (internal quotation marks omitted). Neither a writ of coram nobis nor

a writ of audita querela is available unless § 2255 is inadequate or ineffective. 

See United States v. Payne, 644 F.3d 1111, 1112 (10th Cir. 2011) (“But even if

Defendant’s incarceration on the challenged conviction is not an absolute bar to

relief under a writ of error coram nobis, he is not entitled to such relief unless

relief under 28 U.S.C. § 2255 was unavailable or would have been inadequate.”);

United States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002) (“[A] writ of audita

querela is not available to a petitioner when other remedies exist, such as a

motion to vacate sentence under 28 U.S.C. § 2255.” (internal quotation marks

omitted)); see also 3 Charles Alan Wright et al., Federal Practice and Procedure

§ 624 (4th ed. 2011) (“Coram nobis is unnecessary, and will not lie, if the

defendant is in custody and has a remedy available under § 2255”; “[the writ of

audita querela] is available only for objections that are not covered by other

remedies. Not surprisingly . . . petitions for writs of audita querela are unlikely to

succeed.” (footnote omitted))

Petitioner, however, has raised no argument why § 2255 did not provide an

adequate and effective remedy. Nor do we see any reason why it would be

inadequate or ineffective. It is not inadequate or ineffective merely because a

§ 2255 motion would be untimely or barred as second or successive. See

Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (describing some of the

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narrow circumstances in which § 2255 is inadequate or ineffective and

recognizing that its gatekeeping requirements do not make it an inadequate or

ineffective remedy). We need not decide whether Petitioner’s petition fails on the

merits or for lack of jurisdiction, because the petition was properly dismissed in

either event. 

III. CONCLUSION

We AFFIRM the district court’s order of dismissal. We DENY Petitioner’s

request to proceed in forma pauperis.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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