F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                      March 15, 2007
                      UNITED STATES CO URT O F APPEALS
                                                                    Elisabeth A. Shumaker
                                   TENTH CIRCUIT                        Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,                          No. 06-2115
 v.                                          (D.C. Nos. CIV-06-0047-JC/DJS and
                                                       CR-96-571-JC)
 PHILLIP JASON RH OADS,                                   (D .N.M .)

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Phillip Rhoads, a federal prisoner represented by counsel, appeals the

denial of his Petition for W rit of Habeas Corpus, Petition for W rit of Audita

Querela, and M otion to Preserve Rights U nder H abeas Corpus. For substantially

the same reasons set forth by the district court, we AFFIRM the decision of the

district court, D EN Y Rhoads’ request for authorization to file a second or

successive habeas motion, and DISM ISS.




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Rhoads pled guilty to one count of possession with intent to distribute one

hundred grams or more of methamphetamine in violation of 21 U.S.C.

§ 841(b)(1)(B) and one count of using and carrying a firearm in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c). He was sentenced to 248

months’ imprisonment and five years’ supervised release. Although Rhoads did

not appeal his conviction or sentence, he timely filed a motion under 28 U.S.C.

§ 2255 to vacate, set aside, or correct his sentence in federal district court in

February 1999, which the district court denied on the merits.

      In January 2006, Rhoads, proceeding pro se, filed a “Petition for W rit of

Habeas Corpus[,] Petition for W rit of Audita Querela[,] [and] M otion to Preserve

Rights Under Habeas Corpus,” challenging the legality of his sentence. The

district court denied this motion, and Rhoads – now represented by counsel –

appeals. He argues that the court erred as a matter of law in (1) issuing an

“internally-contradictory” memorandum that failed to articulate a rational reason

for denying his petition, (2) recharacterizing his petition as a § 2255 motion, and

(3) denying the recharacterized § 2255 motion for lack of subject matter

jurisdiction.

      To support his contention that the district court issued an internally

inconsistent memorandum, Rhoads points to the court’s statement that his petition

may be brought only under § 2255 and its allegedly contradictory statement

declining to recharacterize his petition as a § 2255 motion. W e see no

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contradiction here. The court properly determined that the relief sought by

Rhoads must be pursued under § 2255. See United States v. Torres, 

, 1245 (10th Cir. 2002) (“[A] writ of audita querela is not available to a

petitioner when other remedies exist, such as a motion to vacate sentence under

28 U.S.C. § 2255.”) (internal citations and quotations omitted). It then

considered construing Rhoads’ petition as a § 2255 motion, and permissibly

declined to do so “because the applicable limitation period has long expired and

Defendant previously filed a § 2255 motion.” See United States v.

Valadez-Camarena, 

, 1261 (2005) (holding that a district court does

not abuse its discretion in declining to recast pleadings as a § 2255 motion when

relief would be “facially barred as untimely . . . or as second or successive under

28 U.S.C. § 2255”) (internal citation and quotation om itted).

      Rhoads’ remaining challenges to the district court’s order rest on the

assumption that the court proceeded to construe his petition as a motion under

§ 2255. This assumption misreads the court’s decision. The court explicitly

stated, “Defendant’s motion will not be recharacterized as a § 2255 motion,” and

ruled, “Defendant’s Petition for W rit of Habeas Corpus, Petition for W rit of

Audita Querela, and M otion to Preserve Rights Under Habeas Corpus . . . filed

January 17, is DENIED.” Based on this clear language, we conclude the district

court neither construed Rhoads’ petition as a § 2255 motion nor adjudicated the




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merits of a recast § 2255 motion. Thus, Rhoads’ remaining challenges to the

court’s decision fail.

      W e construe Rhoads’ pro se notice of appeal and his brief requesting a

COA as a request for authorization to file a second or successive § 2255 petition.

See U nited States v. Pedraza, 

, 934 (10th Cir. 2006). Because

Rhoads does not rely on newly discovered evidence, he may escape the bar on

second or successive § 2255 motions only if he shows that his claim is based on a

“new rule of constitutional law, made retroactive to cases on collateral review by

the Supreme Court, that was previously unavailable.” § 2255. Although he

contends that his invocation of U nited States v. Booker, 

(2005),

suffices for this showing, Booker is not applied retroactively to cases on

collateral review. Bey v. United States, 

, 1269 (2005).

      W e AFFIRM the decision of the district court, DENY Rhoads’ request for

authorization to file a second or successive § 2255 motion, and DISM ISS.



                                       ENTERED FOR THE COURT



                                       Carlos F. Lucero
                                       Circuit Judge




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