1

HLD

- 053 (December 2010) NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________
No. 10

- 3340

___________
UNITED STATES OF AMERICA

v.

ERIC L. MYRIECKES, SR.

,

Appellant

____________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. Civil No. 00

- cr

- 00014

- 003) District Judge: Honorable Kim R. Gibson

_____________ _______________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 29, 2010 Before: MCKEE, Chief Judge , ALDISERT and WEIS, Circuit Judges

Opinion filed January 27, 2011

_________

OPINION

______ ___
PER CURIAM

.

Eric L. Myrieckes, a federal prisoner, appeals from the order of the United

States District Court for the Western District of Pennsylvania denying his petition for a

writ of audita querela . We will affirm the District Court = s order.2 In 2000, Myrieckes pleaded guilty to one count of conspiracy to distribute

cocaine base in violation of 21 U.S.C. § 846. He was sentenced to 188 months of

impris onment. We affirmed Myrieckes’ conviction in 2002. See C.A. No. 01

- 3518. In

2005, Myriecke s sought relief in District Court under United States v. Booker , 543 U.S.

220 (2005). The District Court, with notice to Myrieckes, re

- characterized the filing as a

motion under 28 U.S.C. § 2255 to vacate his sentence and denied relief. A few months

late r, Myrieckes filed a post

- judgment motion, which the District Court also denied.

Myrieckes appealed from the order denying his post

- judgment motion, and we denied his

request for a certificate of appealability. See C.A. No. 05

- 5036. Myrieckes returned t o

the District Court and filed additional motions for relief concerning his conviction and

sentence. The District Court dismissed the motions, concluding that they constituted

successive section 2255 motions to vacate his sentence that were filed without the

statutorily

- required authorization from this Court. In 2007, we denied Myrieckes’

request for a certificate of appealability. See C.A. No. 07

- 2312. 1

In July 2010, Myrieckes filed a petition for a writ of audita querela in

District Court, again asse rting that he was entitled to relief under Booker . He alleged

that, in light of Booker , his sentencing under the then

- mandatory federal sentencing

guidelines scheme constitutes error. Myrieckes asserted that a writ of audita querela is

1 Myrieckes then returned to District Court to pursue a motion for reduc tion of sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the federal sentencing guidelines. The District Court denied the motion, and we affirmed. See C.A. No. 09

- 1282.3

his only available avenue of relief because of the statutory limitations on his ability to file

another section 2255 motion. 2 The D istrict Court denied Myrieckes’ petition, noting our

decision in Massey v. United States , 581 F.3d 172 (3d Cir. 2009) (per curiam). This

appe al followed.

In Massey , a federal prisoner filed a petition for a writ of audita querela

seeking to challenge his sentence under Booker . The prisoner contended that he might

have received a shorter sentence if the sentencing court had not viewed the sen tencing

guidelines as mandatory. We held that the prisoner could not seek relief through a

petition for a writ of audita querela because section 2255 was the appropriate remedy to

pursue his claim. See Massey , 581 F.3d at 174. We explained that the pris oner could not

resort to a writ of audita querela based on his inability to satisfy the statutory

requirements for filing a section 2255 motion. See id. The same is true here. We agree

with the District Court’s conclusion that the writ of audita querela is unavailable in

Myrieckes’ situation.

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

we will affirm the District Court = s order. See 3d Cir. LAR 27.4.

2 audita querela . A writ granted by the courts of common la w in favor of one against whom execution had issued or was about to issue upon a judgment which it would be contrary to justice to enforce, either because of matters arising subsequent to the rendition thereof, or because of prior existing defenses which

w ere not available to the judgment debtor in the original suit, by reason of the judgment creditor's fraudulent conduct, or through circumstances over which the judgment debtor had no control. Ballentine Law Dictionary with Pronunciations (1930).