Filed: Feb. 28, 2011
Latest Update: Feb. 22, 2020
Summary: , Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M., Meconiates, Assistant U.S. Attorney, and Rosa Emilia Rodriguez-, Velez, United States Attorney, on brief for appellee.United States v. Lugo Guerrero, 524 F.3d 5, 14 (1st Cir.provisions of section 2255(h) in order for the motion to proceed.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1165
UNITED STATES,
Appellee,
v.
ESTEBAN RIVERA-LEBRON, a/k/a Junito,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Boudin, Howard and Thompson,
Circuit Judges.
Esteban Rivera-Lebron on brief pro se.
Nelson Pérez-Sosa, Assistant U.S. Attorney, Julia M.
Meconiates, Assistant U.S. Attorney,and Rosa Emilia Rodriguez-
Velez, United States Attorney, on brief for appellee.
February 28, 2011
Per Curiam. After a thorough review of the record and of
the parties' submissions, we affirm. Appellant Esteban Rivera-
Lebron ("Rivera") has waived his right to appeal the denial of his
motion for a writ of audita querela because he failed to file an
objection to the magistrate judge's Report and Recommendation. See
United States v. Lugo Guerrero,
524 F.3d 5, 14 (1st Cir. 2008).
That Report and Recommendation properly advised Rivera that a
failure to object would amount to a waiver. See United States v.
Valencia-Copete,
792 F.2d 4, 6 (1st Cir. 1986).
Furthermore, we see no plain error that would cause us to
overlook the waiver. See Thomas v. Arn,
474 U.S. 140, 155 (1985).
"The armamentarium of common-law writs [is] available only to fill
whatever interstices exist in the post-conviction remedial scheme
made available to federal prisoners by way of [28 U.S.C. §] 2255."
Trenkler v. United States,
536 F.3d 85, 97 (1st Cir. 2008). Where
a prisoner has filed a motion for relief under one of the common
law writs, the court must examine the substance of the motion to
determine whether the claim is one that would be cognizable under
section 2255. If so, the motion must satisfy the gate-keeping
provisions of section 2255(h) in order for the motion to proceed.
Id.
Rivera's motion clearly falls within the purview of
section 2255, as he challenges the validity of his sentence under
United States v. Booker,
543 U.S. 220 (2005). The motion fails to
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meet the gate-keeping requirements of section 2255. Rivera has
already filed a first section 2255 motion, so the instant filing
was, in essence, a second or successive section 2255 motion, and
Rivera failed to request permission first from this court to
proceed with his second or successive motion as required by 28
U.S.C. § 2255(h). Even if he had done so, the request would have
been denied because the motion does not rely upon a new rule of
constitutional law made retroactive to cases on collateral review
by the Supreme Court or upon newly discovered evidence. See 28
U.S.C. § 2255(h)(1) & (2).
Affirmed. See 1st Cir. R. 27.0(c).
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