Filed: Apr. 23, 2021
Latest Update: Apr. 24, 2021
USCA11 Case: 20-13990 Date Filed: 04/23/2021 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13990
Non-Argument Calendar
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D.C. Docket No. 0:19-cv-61047-JIC
KENNY BLANC,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 23, 2021)
Before MARTIN, BRANCH AND MARCUS, Circuit Judges.
PER CURIAM:
Kenny Blanc, a pro se federal prisoner, appeals the district court order denying
his motion for a writ of audita querela and its conclusion that he could only challenge
his convictions and sentences in a motion to vacate under 28 U.S.C. § 2255. The
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government has moved for summary affirmance and to stay the briefing schedule.
After careful review, we grant the government’s motion for summary affirmance.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 1
We review de novo the question of whether a prisoner may challenge his
sentence by filing a petition for a writ of audita querela. United States v. Holt, 417
F.3d 1172, 1174 (11th Cir. 2005). Additionally, we review questions of the district
court’s subject matter jurisdiction de novo. United States v. Al-Arian,
514 F.3d
1184, 1189 (11th Cir. 2008). “[W]e may affirm for any reason supported by the
record, even if not relied upon by the district court.”
Id. (quotations omitted). “Pro
se pleadings are held to a less stringent standard than pleadings drafted by attorneys
and will, therefore, be liberally construed.” Tannenbaum v. United States,
148 F.3d
1262, 1263 (11th Cir. 1998).
1
In Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
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A prisoner in custody may move the court that sentenced him to vacate, set
aside, or correct the sentence, “claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of the United States
. . . or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Typically,
collateral attacks on the validity of a federal conviction or sentence must be brought
under § 2255. Sawyer v. Holder, 326 F.3d 1363, 1365 (11th Cir. 2003). When a
prisoner has previously filed a § 2255 motion that was adjudicated on the merits, he
must apply for and receive permission from the court of appeals before filing another
one. 28 U.S.C. §§ 2244(b), 2255(h). Without authorization from our Court, the
district court lacks jurisdiction to consider a second or successive § 2255 motion.
Farris v. United States,
333 F.3d 1211, 1216 (11th Cir. 2003).
The All Writs Act provides that “[t]he Supreme Court and all courts
established by Act of Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). When a statute specifically addresses the particular issue at hand,
it is that authority, and not the All Writs Act, that controls. Carlisle v. United States,
517 U.S. 416, 429 (1996). In the criminal context, “federal courts may properly fill
the interstices of the federal postconviction remedial framework through remedies
available at common law.”
Holt, 417 F.3d at 1175 (quotations omitted).
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The writ of audita querela “was an ancient writ used to attack the enforcement
of a judgment after it was rendered” and was abolished in the civil context by Federal
Rule of Civil Procedure 60(b), but remains available in some criminal contexts. Id.
at 1174-75. A writ of audita querela may not issue when relief is cognizable under
§ 2255.
Id. at 1175. When a prisoner attacks his sentence “as violating the United
States Constitution, the proper avenue of relief is § 2255.”
Id. This rule applies
even if a prisoner’s only remaining remedy is to seek leave to file a successive or
second § 2255 motion because his original § 2255 motion already was denied.
Id.
Finally, a prisoner cannot seek money damages through a civil action
collaterally attacking a conviction or sentence unless the underlying conviction or
sentence “has been reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.” Heck v.
Humphrey,
512 U.S. 477, 486-87 (1994).
Here, we grant the government’s motion for summary affirmance because
there is no substantial question that Blanc was not entitled either to audita querela
relief or money damages. See Groendyke Transp., Inc., 406 F.2d at 1162; see also
Al-Arian, 514 F.3d at 1189. Blanc’s claims challenged the constitutionality of his
convictions and sentences, mostly under the Supreme Court’s recent decision in
United States v. Davis,
139 S. Ct. 2319 (2019), but also under the Fifth Amendment
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and other constitutional provisions. Because we’ve squarely held that claims
challenging the constitutionality of a conviction or sentence only are cognizable
under § 2255, Blanc could not obtain a writ of audita querela to pursue them. See
Holt, 417 F.3d at 1175;
Carlisle, 517 U.S. at 428-29. Moreover, because his claims
are only cognizable under § 2255, Blanc would need our authorization to file a
successive § 2255 motion and that hurdle does not make a writ of audita querela an
available remedy. See
Holt, 417 F.3d at 1174-75. Thus, the district court properly
found that Blanc was not entitled to audita querela relief. It also properly noted that,
if it construed Blanc’s motion as having been brought under § 2255, it would lack
jurisdiction because Blanc has not obtained leave to file a second or successive §
2255 motion.
Farris, 333 F.3d at 1216; 28 U.S.C. § 2255(h).
Nor did the district court err in concluding that Blanc’s claims for money
damages were without merit since he did not show that his convictions or sentences
had been reversed or declared invalid and, in fact, he sought their vacatur in his
motion instead. See Heck, 512 U.S. at 486-87. Accordingly, because there is no
substantial question that the district court properly denied Blanc’s motion seeking
audita querela relief and money damages, we GRANT the government’s motion for
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summary affirmance and DENY as moot the government’s motion to stay the
briefing schedule. See Groendyke Transp., Inc., 406 F.2d at 1162. 2
2
Finally, because no Judge in regular active service on the Court has requested that the Court be
polled on hearing en banc (Rule 35 Federal Rules of Appellate Procedure; Eleventh Circuit Rule
35-1), Blanc’s petition for hearing en banc is DENIED.
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