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not binding precedent, except under the doctrines of law of the case, res judicata,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

FILED

United States Court of Appeals

Tenth Circuit

April 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LEALON MULDROW,

Defendant-Appellant.

No. 09-3309

(D.C. No. 2:92-CR-20063-JWL-2)

(D. Kan.)

ORDER AND JUDGMENT*

Before TACHA, BALDOCK, and BRISCOE, Circuit Judges.

Lealon Muldrow is serving a 360-month sentence in federal prison for

possessing crack cocaine with the intent to distribute it in the vicinity of an

elementary school. After losing his direct appeal and multiple habeas petitions

filed under 28 U.S.C. §§ 2255 and 2241, in July 2009, he filed a petition in the

district court seeking a writ of audita querela under the All Writs Act, 28 U.S.C.

Appellate Case: 09-3309 Document: 01018410855 Date Filed: 04/28/2010 Page: 1
1 See, e.g., United States v. Mora, 293 F.3d 1213, 1219 (10th Cir. 2002)

(concluding the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490

(continued...)

-2-

§ 1651. The district court denied the petition, concluding that such a writ may

not issue if there is another avenue by which a criminal defendant can challenge

his sentence, and that § 2255 is such an avenue. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

“[A] writ of audita querela is used to challenge a judgment that was correct

at the time rendered but which is rendered infirm by matters which arise after its

rendition.” United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002)

(internal quotation marks omitted). Although the writ has been abolished in civil

cases, we acknowledged in Torres that, at least theoretically, audita querela may

afford post-conviction relief to a criminal defendant. Id.; see also Massey v.

United States, 581 F.3d 172, 174 (3d Cir. 2009) (“[T]he writ is available in

criminal cases to the extent that it fills in gaps in the current system of

post-conviction relief.”). But as the district court correctly noted, “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.” Torres, 282 F.3d at 1245

(internal quotation marks omitted).

Mr. Muldrow argues that § 2255 is not adequate in his case because of

the preclusive effect of the second and successive rules combined with the

non-retroactivity of the constitutional rulings upon which he relies.1

 We reject

Appellate Case: 09-3309 Document: 01018410855 Date Filed: 04/28/2010 Page: 2
1

(...continued)

(2000), does not apply retroactively on collateral review); United States v.

Bellamy, 411 F.3d 1182, 1188 (10th Cir. 2005) (holding same with respect to rule

announced in United States v. Booker, 543 U.S. 220 (2005)).

-3-

this argument. “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.” United

States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001); see also Massey,

581 F.3d at 174. “Indeed, to allow a petitioner to avoid the bar against successive

§ 2255 petitions by simply styling a petition under a different name would

severely erode the procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3)

and 2255.” Torres, 282 F.3d at 1246. The district court correctly held that

§ 2255 is the means to collaterally challenge a federal sentence even in cases

where preauthorization is required under § 2244(b)(3). Consequently, there is no

gap to fill in the post-conviction remedies so as to justify use of the writ. The

district court’s judgment is therefore AFFIRMED.

Mr. Muldrow’s request to proceed in forma pauperis is GRANTED.

Entered for the Court

Bobby R. Baldock

Circuit Judge

Appellate Case: 09-3309 Document: 01018410855 Date Filed: 04/28/2010 Page: 3