DLD-112                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 11-4329
                                   ___________

                        UNITED STATES OF AMERICA

                                         v.

                              EFRAIM FONTANEZ
                                  a/k/a Chino
                                  a/k/a Indio

                           EFRAIM FONTANEZ,
                                             Appellant
                   ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                      (D.C. Crim. No. 2-89-cr-00037-001)
                   District Judge: Honorable Robert F. Kelly
                  ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                                February 9, 2012

           Before: AMBRO, JORDAN & VANASKIE, Circuit Judges

                        (Opinion filed: February 23, 2012)
                                    _________

                                    OPINION
                                    _________

PER CURIAM

    Efraim Fontanez appeals pro se from an order dismissing his petition for a writ for
audita querela. Because no substantial question is presented by this appeal, we will

summarily affirm the order of the District Court.

       Fontanez was convicted in 1989 for numerous drug charges arising out of the

activities of the “Fontanez Cocaine Organization,” including conspiracy to distribute

cocaine; conducting a continuing criminal enterprise (“CCE”), 21 U.S.C. § 848; unlawful

use of a telephone; distribution of cocaine; and distribution of cocaine at or near a school.

His judgment and life sentence were affirmed by this Court in 1990. Appeal of Fontanez,

(Table) (3d Cir. 1990), cert. denied, 

(1991). In January 1996,

Fontanez filed a motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255; it was

denied on its merits and no certificate of appealability issued. United States v. Fontanez,

C.A. No. 96-2038 (3d Cir. 1997). In 1999, Fontanez filed another § 2255 motion

claiming that his CCE conviction must be vacated in light of Richardson v. United

States, 

(1999) (holding a jury must be instructed to unanimously agree as to

the specific “violations” that support a CCE offense). In a separate action filed in

November 2000, Fontanez sought permission to file a second or successive § 2255

motion raising the same claim. The motion was dismissed, and permission to file was

denied. United States v. Fontanez, C.A. No. 00-1663 (3d Cir. 2000) (denying Fontanez’s

request for a certificate of appealability); In re: Efraim Fontanez, C.A. No. 00-3503 (3d

Cir. 2000).

       In May 2011, Fontanez filed the instant petition for a writ of audita querela under

28 U.S.C. § 1651. He claimed that the District Court improperly imposed a mandatory
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life sentence and, once again, that his CCE conviction should be vacated in light of

Richardson. The District Court denied the motion, finding that such a challenge must be

brought in a § 2255 motion. Fontanez appeals.

       We have jurisdiction under 28 U.S.C. § 1291. The writ of audita querela is

available as residual post-conviction relief “to the extent that it fills in gaps in the current

system of post-conviction relief.” Massey v. United States, 

, 174 (3d Cir.

2009). Thus, relief via a petition for a writ of audita querela is not available where a

specific statute addresses the issue at hand. 

to collaterally challenge a

federal conviction or sentence” is through a motion pursuant to 28 U.S.C. § 2255, not a

petition for a writ of audita querela. 

in § 2255 on filing successive

habeas motions do not create a gap which may be filled by the writ of audita querela.

Accordingly, the District Court did not err in denying Fontanez’s petition.

       As this appeal presents no substantial question, we will summarily affirm the

District Court’s order.




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