FILED

United States Court of Appeals

Tenth Circuit

June 11, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

BRIAN MADDOX,

Movant.

No. 10-2040

(D.C. Nos. 1:06-CV-00250-JAP-LCS

and 1:02-CR-01592-JAP-1) 

(D. N.M.)

ORDER

Before BRISCOE, Chief Judge, MURPHY, and HARTZ, Circuit Judges.

Brian Maddox seeks authorization to file a second or successive

28 U.S.C. § 2255 motion to vacate, set aside or correct his sentence. Because

Mr. Maddox has not demonstrated that his proposed motion meets the requisite

conditions under § 2255(h), we deny authorization and dismiss the proceeding. 

We also deny his alternative request to remand this matter to the district court.

Mr. Maddox pleaded guilty to one count of being a felon in possession of a

firearm, and was sentenced to 188 months’ imprisonment. His conviction and

sentence were affirmed on appeal. United States v. Maddox, 388 F.3d 1356, 1358

(10th Cir. 2004). In March 2006, Mr. Maddox filed his first § 2255 motion,

which the district court denied in August 2006. Three years later, Mr. Maddox

filed a motion to vacate that judgment, which the district court construed as an

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unauthorized second or successive motion and dismissed for lack of jurisdiction. 

This court dismissed his appeal from that order for lack of prosecution. United

States v. Maddox, No. 09-2134 (10th Cir. Nov. 30, 2009). 

In May 2009, Mr. Maddox filed a petition for writ of audita querela in the

district court. The district court concluded that Mr. Maddox’s petition sought to

challenge the validity of his sentence, and it therefore construed it as an

unauthorized second or successive § 2255 motion and transferred it to this court.

See In re Cline, 531 F.3d 1249, 1252 (10th Cir. 2008) (per curiam) (permitting

district courts to transfer unauthorized second or successive motions to this court

in the interest of justice pursuant to 28 U.S.C. § 1631). Mr. Maddox now seeks

authorization to file a second or successive § 2255 motion.

In order to receive authorization, Mr. Maddox must show that there is

either: 

(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). In his motion, Mr. Maddox argues that he is entitled to a

sentence reduction based on a “new rule of law,” citing to Chambers v. United

States, 129 S. Ct. 687 (2009). Mr. Maddox’s sentence was enhanced based on his

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prior failure to return to prison. At the time he was sentenced, that offense was

treated as a “violent felony” under the Armed Career Criminal Act, see 18 U.S.C.

§ 924(e)(1); Maddox, 388 F.3d at 1368-69 (holding his failure to return was

properly treated as a violent felony under circuit precedent). In Chambers, the

Supreme Court held that a failure-to-report charge under state law was not a

violent felony within the terms of the Armed Career Criminal Act. 129 S. Ct.

at 690-92. Mr. Maddox further cites to United States v. Shipp, 589 F.3d 1084,

1091 (10th Cir. 2009), in which we held that the Chambers decision applies

retroactively to cases on collateral review. 

Although Chambers is a Supreme Court decision that was previously

unavailable, it does not satisfy the standard for authorization under § 2255(h)(2). 

First, Chambers did not set forth “a new rule of constitutional law,” id., instead it

resolved a question of statutory interpretation. 129 S. Ct. at 690-93. Second, to

date, the Supreme Court has not held that its holding in Chambers should be

“made retroactive to cases on collateral review,” § 2255(h)(2); see also Tyler v.

Cain, 533 U.S. 656, 663 (2001) (“[A] new rule is not made retroactive to cases on

collateral review unless the Supreme Court holds it to be retroactive.” (quotation

omitted)).

Alternatively, Mr. Maddox argues, for the first time in his reply brief, that

the district court should not have construed his writ of audita querela as a

successive § 2255 motion, and he asks this court to remand the matter to the

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district court to rule on his writ. Remand is not warranted, however, because

Mr. Maddox cannot obtain the relief he desires through a writ of audita querela. 

“[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, Fed. R. Civ. P. 60(e), we acknowledged in Torres that, at least

theoretically, audita querela may afford post-conviction relief to a criminal

defendant. Torres, 282 F.3d at 1245 n.6. However, “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” or a writ of habeas corpus under

28 U.S.C. § 2241. Id. at 1245 (internal quotation marks omitted). The mere fact

that Mr. Maddox is procedurally precluded from filing a second 2255 motion does

not establish that the remedy in § 2255 is inadequate, see Caravalho v. Pugh, 177

F.3d 1177, 1179 (10th Cir. 1999), and Mr. Maddox does not present any argument

in his reply brief as to why a possible § 2241 remedy is inadequate or ineffective.

See 28 U.S.C. § 2255(e). We decline to decide whether or not any postconviction remedy under § 2241 is available to address Mr. Maddox’s Chambers

claim. Thus, we deny his request for remand.

Because Mr. Maddox has not satisfied the standards in § 2255(h), his

motion for authorization to file a second or successive § 2255 motion is DENIED. 

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This denial of authorization is not appealable and “shall not be the subject of a

petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). We

note, however, that this denial does not preclude Mr. Maddox from filing a new

petition under 28 U.S.C. § 2241 asserting that there is no adequate or effective

relief available under § 2255 for his Chambers claim. See 28 U.S.C. § 2255(e). 

Further, this denial is without prejudice to Mr. Maddox’s right to raise his

Chambers claim in a subsequent motion for authorization under § 2255(h) if the

Supreme Court makes its holding in Chambers retroactive to cases on collateral

review. This matter is DISMISSED.

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

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