Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-10-2006

USA v. Coleman
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4639




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Recommended Citation
"USA v. Coleman" (2006). 2006 Decisions. Paper 1764.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1764


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HPS-20                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 05-4639
                                   ________________

                           UNITED STATES OF AMERICA

                                           vs.

                             ROBERT L. COLEMAN, JR.,
                                              Appellant


                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (D.C. Crim. No. 94-cr-00085-02)
                      District Judge: Honorable Sylvia H. Rambo


              Submitted Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  December 16, 2005

    BEFORE: SCIRICA, CHIEF JUDGE, WEIS and GARTH, CIRCUIT JUDGES

                                (Filed: January 10, 2006)

                                  _________________

                                      OPINION
                                 __________________

PER CURIAM.

             Appellant Robert Coleman was convicted following a jury trial in the

District Court for the Middle District of Pennsylvania of conspiracy to and possession



                                            1
with intent to distribute fifty or more grams of crack cocaine. He was sentenced to 262

months imprisonment. We affirmed in United States v. Coleman, 

(3d Cir.

1995). Appellant filed a petition for writ of certiorari, which was denied. See Coleman

v. United States, 

(1995). On June 27, 2001, Appellant filed a motion under

28 U.S.C. § 2255, which was denied by the District Court as time-barred. Coleman then

filed an application under 28 U.S.C. § 2244 to file a second or successive motion under §

2255. That application was denied by this Court. On February 22, 2005, Coleman filed

another 28 U.S.C. § 2255 motion in the District Court raising issues arising under United

States v. Booker, 

(2005). The District Court denied Coleman’s Motion.

Coleman then filed a Motion for Reconsideration, which was denied. He appealed and

we denied his application for a certificate of appealability on November 1, 2005.

              While Coleman’s application for a certificate of appealability was pending,

he filed a petition in the District Court under the All Writs Act, 28 U.S.C. § 1651,

specifically the ancient writ of audita querela, contending that his Sixth Amendment

rights were violated based upon the recent Supreme Court decision in Booker. In an

Order dated September 27, 2005, the District Court denied this petition. Coleman timely

filed a notice of appeal. The parties were notified by our Clerk that we might act

summarily and we invited the parties to submit responses. Appellant filed an informal

brief in response.

              We will summarily affirm the District Court’s Order under Third Circuit



                                             2
LAR 27.4 and I.O.P. 10.6, because it appears that no substantial question is presented by

this appeal. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive

means to collaterally challenge a federal conviction or sentence. Section 2255 is not

inadequate or ineffective so as to enable Coleman to resort to the All Writs Act, 28 U.S.C.

§ 1651, specifically the writ of audita querela, merely because he previously suffered an

adverse decision in a Section 2255 proceeding.

              The All Writs Act is a residual source of authority to issue writs in

exceptional circumstances. See Pa. Bureau of Corr. V. U.S. Marshals Serv., 

,

43 (1985). We have held that Section 2255 is not inadequate or ineffective merely

because a petitioner was unable to meet the stringent gatekeeping requirements for second

or successive Section 2255 motions. See Cradle v. United States ex rel. Miner, 

, 538-39 (3d Cir. 2002)(per curiam); In re Dornsainvil, 

, 251 (3d Cir.

1997). This principle applies to a petition for a writ of audita querela.1 In United States

v. Valdez-Pacheco, 

(9th Cir. 2001), the Court of Appeals for the Ninth

Circuit held, and we agree, that “[a] prisoner may not circumvent valid congressional

limitations on collateral attacks by asserting that those limitations create a gap in post-

conviction remedies that must be filled by the common law writs,” specifically audita



   1
     The ancient writ of audita querela was used to attack a judgment that was correct
when it was rendered but later became incorrect as a result of matters arising after it
issued. See, e.g., Doe v. Immigration & Naturalization Serv., 

, 203 n.4 (9th
Cir. 1997)(citations omitted).


                                               3
querela. 

(citations omitted). Thus, issuance of a writ of audita querela is not

an available remedy here.

              We will summarily affirm the Order of the District Court dismissing the

petition.