Filed: Jun. 20, 2016
Latest Update: Jun. 20, 2016
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Convicted on his guilty plea and sentenced to 96 months for violating 8 U.S.C. 1326(a) and (b)(2) (illegal reentry by an illegal alien), doc. 34, Adan Platas Larios filed a "Petition to Correct Clerical Error in the [Presentence Investigation Report (PSI)]," doc. 52, which follows a direct appeal dismissed pursuant to his plea agreement's sentence-appeal waiver. Doc. 51. He claimed that his sentence is too long because, in calcula
Summary: REPORT AND RECOMMENDATION G.R. SMITH , Magistrate Judge . Convicted on his guilty plea and sentenced to 96 months for violating 8 U.S.C. 1326(a) and (b)(2) (illegal reentry by an illegal alien), doc. 34, Adan Platas Larios filed a "Petition to Correct Clerical Error in the [Presentence Investigation Report (PSI)]," doc. 52, which follows a direct appeal dismissed pursuant to his plea agreement's sentence-appeal waiver. Doc. 51. He claimed that his sentence is too long because, in calculat..
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REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Convicted on his guilty plea and sentenced to 96 months for violating 8 U.S.C. § 1326(a) and (b)(2) (illegal reentry by an illegal alien), doc. 34, Adan Platas Larios filed a "Petition to Correct Clerical Error in the [Presentence Investigation Report (PSI)]," doc. 52, which follows a direct appeal dismissed pursuant to his plea agreement's sentence-appeal waiver. Doc. 51. He claimed that his sentence is too long because, in calculating it under the U.S. Sentencing Guidelines, the Probation Office wrongly attributed a number of points in assessing his criminal history. Doc. 52 at 2-3. He thus wanted the Court to "investigate" the sentence, "correct" any errors, and "grant him any necessary relief." Doc. 52 at 4 (insisting the error was clerical and that "applying someone else['s] record as factors to increase [his] sentence is a gross miscarriage of justice which was completely discounted and disregarded by his counsel[,] overlooked by the U.S. Probation Office and the Court.").
As this Court explained, such alleged ministerial errors (confusing someone else's criminal record with movant's) blended with an ineffective assistance claim (Larios says he told his lawyer, who ignored him) support heartland § 2255 claims aimed at challenging a criminal sentence. As the Government correctly contended:
A section 2255 motion is typically the exclusive remedy for a federal prisoner to collaterally attack the validity of his sentence. See Antonelli v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 n.1 (11th Cir. 2008). Larios has never filed any such motion, but it appears that such a motion would be untimely. See 28 U.S.C. § 2255(f)(1) (typically requiring such a motion to be filed within a year of "the date on which the judgment of conviction becomes final"). Recharacterizing Larios's motion under § 2255 thus likely would be futile.
Doc. 53 at 3; see also Zelaya v. Sec'y, Fla. Dep't of Corr., 798 F.3d 1360, 1372 (11th Cir. 2015) ("To proceed under [28 U.S.C.] § 2241, a federal prisoner first must show some procedural defect in § 2255 renders it inadequate to test the legality of h[is] conviction.").
Larios insisted that the Court could use Fed. R. Crim. P. 36, but that only covers minor, uncontroversial errors, not those that pack sentence-altering results.1 He also invoked Fed. R. Civ. P. 60(a), but, as the Court also explained, those "corrections are for the purpose of accurately reflecting the decision that the court actually made, not to alter the substance of the decision." United States v. Akiti, 2016 WL 837931 at *2 n. 3 (D. Minn. Mar. 3, 2016) (citing Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir. 1997)). Larios wants his sentence reduced per "correction." That unquestionably seeks to alter the judgment against him.
The Court thus would not accept his generic "Petition" label.2 Because Larios in substance had filed a § 2255 motion (his first such motion), the Court warned him under Castro v. United States, 540 U.S. 375, 383 (2003) ("[W]hen a court recharacterizes a pro se litigant's motion as a first § 2255 motion . . . [it] must notify [him] that it intends to recharacterize the pleading, warn [him] that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on `second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has."). Doc. 57. It thus gave him 30 days to advance or withdraw his § 2255 motion. Id. at 5.
Rather than comply, Larios has filed a Writ of Audita Querela, doc. 58, which "may not be granted when relief is cognizable under § 2255. United States v. Holt, 417 F.3d 1172, 1175 (11th Cir. 2005)." United States v. Byrd, 2010 WL 5463060 at *1 (M.D. Fla. Dec. 29, 2010); United States v. Chandler, ___ F.Supp.3d ___, 2016 WL 1698253 at *5 (N.D. Ala. Apr. 28, 2016) ("With section 2255 (or, possibly, section 2241) being the only available avenue of relief for Chandler's claim, there is no gap in the federal post-conviction remedial scheme for audita querela to fill. The ancient writ slumbers still."); see also Jackson v. Flournoy, 2016 WL 3167187 at *2 (S.D. Ga. June 6, 2016) (equity, hence a writ, can do no service where at-law (hence, statutory) remedies exist; consequently, one cannot use the writ of audita querela where a statutory sentencing remedy exists).
Hence, Adan Platas Larios' "Petition," doc. 52, as amended, doc. 58 ("Writ of Audita Querela") should be DENIED.
SO REPORTED AND RECOMMENDED.
