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Begay filed essentially the same petition on March 23, 2013 in CV-13-

08062, which the Court dismissed with prejudice in an order (Doc. 3) entered on

June 11, 2013.

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America

 Plaintiff,

vs.

Ivan Ray Begay,

 Defendant/Movant.

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No. CV-15-08209-PCT-PGR (JZB)

No. CR-00-01222-PCT-PGR

 

 

 ORDER 

On October 1, 2015, movant Ivan Ray Begay, who is incarcerated in the

Federal Correctional Institution in Seagoville, Texas, filed a pro se Petition for Writ

of Audita Querela, Pursuant to the All Writs Act, 28 U.S.C. § 1651 (Doc.1 in CV-15-

08209 and Doc. 91 in CR-00-01222). In his petition, Begay seeks to be resentenced, arguing that his sentence, which was entered on September 17, 2001,

was enhanced under the then-mandatory federal sentencing guidelines which were

subsequently declared unconstitutional by the Supreme Court in United States v.

Booker, 542 U.S. 220 (2005).1 The Court finds that the petition should be summarily

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denied for lack of subject matter jurisdiction.

Begay’s claim that he is entitled to a writ of audita querela to obtain resentencing in light of Booker has been conclusively foreclosed by the Ninth Circuit,

which has repeatedly held that a federal prisoner may not challenge a sentence by

way of a petition for a writ of audita querela when that challenge is cognizable

through a § 2255 habeas petition. United States v. Valdez-Pacheco, 237 F.3d 1077,

1080 (9th Cir.2001) (also holding that the fact that a second or successive § 2255

motion may be barred pursuant to 28 U.S.C. § 2255(h) does not permit

circumvention of the statute by styling a second or successive petition as a petition

for a writ of audita querela.); see also, Carrington v. United States, 503 F.3d 888,

890 (9th Cir.2007) (holding that the statutory limits on second or successive habeas

petitions and cases such as Booker which do not apply on collateral review do not

create a gap in the post-conviction landscape that can be filled with common law

writs.) Begay’s petition is in reality a second or successive motion pursuant to §

2255 which the Court has no jurisdiction to adjudicate since Begay has not obtained

from the Ninth Circuit the certification required by § 2255. Therefore,

IT IS ORDERED that the Court’s Notice of Assignment (Doc. 2 in CV15-08209-PCT-PGR (JZB)) is vacated.

IT IS FURTHER ORDERED that movant Begay’s Petition for a Writ of Audita

Querela (Doc. 91 in CR-00-01222-PCT-PGR) is denied and the civil action opened

in connection with the petition (CV-15-08209-PCT-PGR (JZB)) is dismissed for lack

of subject matter jurisdiction. The Clerk of the Court shall enter judgment

accordingly.

IT IS FURTHER ORDERED that a certificate of appealability, to the extent that

one is required, shall not be issued and that the movant is not entitled to appeal in

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forma pauperis because reasonable jurists would not find it debatable whether the

petition states a valid claim for the denial of a constitutional right and would not find

the Court’s procedural ruling debatable.

DATED this 8th day of October, 2015.

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