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HLD-053 (December 2010) NOT PRECEDENTIAL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.
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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 

imprisonment. We affirmed Myrieckes’ conviction in 2002. See C.A. No. 01-3518. In 

2005, Myrieckes 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 

later, 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 to 

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 asserting 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 

 

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 Myrieckes then returned to District Court to pursue a motion for reduction 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.
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his only available avenue of relief because of the statutory limitations on his ability to file 

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

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

appeal 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 sentencing 

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 prisoner 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.

 

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audita querela. A writ granted by the courts of common law 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 

were 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).