United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
ANCER L. HAGGERTY, District Judge.
Defendant Terrance Fischer brings this Petition for Writ of Audita Querala  seeking to reduce or vacate his prison sentence. Petitioner was sentenced to 235 months in prison pursuant to a plea agreement, under which petitioner agreed to plead guilty to ten counts involving the importation, distribution, and possession with the intent to distribute MDMA. Petitioner argues that his sentence should be reduced and he should be released because it was based on the MDMA Guidelines that were issued by the U.S. Sentencing Commission in May 2001, and which are now considered by many experts to be based upon flawed science. Having carefully considered the briefs in support of and in opposition to the Petition, and the entire record concerning defendant's plea, sentencing, and post-conviction record, defendant's Petition for the Writ of Audita Querala  is DENIED.
Defendant pied guilty in 2004 to multiple counts, including conspiracy to import, distribute, and possess with the intent to distribute Methylenedioxymeethamphetamine, or MDMA, from approximately November 2000 through September 200 I. The plea agreement noted that based upon the MDMA Guidelines, the conversion of MDMA to marijuana resulted in the marijuana equivalent of 10, 000 to 30, 000 kilograms, resulting in a base offense level of 36, and that the government would recommend a sentence of 235 months in prison. Judgment was entered on June 14, 2004, and defendant was sentenced to 235 months in prison, a five year term of supervised release, and a special assessment of $1, 000. Defendant's co-conspirators Andre Wegner and J.W. Wilson were sentenced to 77 months and 240 months in prison, respectively; although Wilson's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [285) was granted in March 2010 and he was subsequently released from prison. United States v. Wilson, 719 F.Supp.2d 1260 (D. Or. 2010). Defendant is therefore the only conspirator who remains in prison and is serving a sentence at least ten years longer than any of his co-conspirators.
Defendant did not pursue a direct appeal of his conviction or his sentence. Since his sentence was imposed, however, defendant has repeatedly pursued post-conviction relief on the grounds that his sentence is too long. On June 24, 2005, defendant filed a prose Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255 . Defendant raised a number of theories for why his sentence should be set aside, including: that the government had promised to file a motion for a reduction of sentence based on his substantial assistance; that the inclusion of his criminal history in calculating the sentence violated the doctrine of speciality; that he was entitled to re-sentencing under United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004); that his counsel was ineffective in not securing a more favorable sentence; and that the calculation of the base offense level was incorrect. On March 20, 2007, the court issued an Opinion and Order  denying his motion, finding that his waiver of the right to file a 28 U.S.C. § 2255 motion under his plea agreement was dispositive. The court also specifically addressed each of plaintiffs claims and rejected each one.
On December 17, 2007, defendant filed two Notices of Supplemental Authority regarding Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255 [314, 315]. Defendant additionally filed a Verified Motion for Evidentiary Hearing  on January 2, 2008, a Motion to Reopen the Time for Filing an Appeal  on January 4, 2008, and a Verification Motion to Reconsider Order Denying Relief under 28 U.S.C. § 2255  on January 7, 2008. Defendant's supplemental filings included additional arguments regarding the calculation of his base offense level. Defendant argued that the MDMA guidelines were unfair and violated his constitutional rights. On January 10, 2008, this court issued an Order  construing defendant's Motion to Re-Open the Time for Filing an Appeal as a motion to reconsider the court's March 20, 2007 Order. This court then vacated its March 20, 2007 Opinion and Order, reviewed defendant's supplemental authorities and the record and again denied the petition. Defendant filed a Motion for Certificate of Appealability  the same day. On January 18, 2008, this court issued an Order  denying defendant's January 7, 2010 Motion to Reconsider  and Motion for Certificate of Appealability  as moot. In Orders issued on February 6, 2008 (324] and February 12, 2008 , this court vacated its January 18, 2008, Order and granted defendant's Motion for Certificate of Appealability (321) on two issues raised in the petition: the scope of the doctrine of speciality and the alleged due process violation. Petitoner filed an Amended Notice of Appeal (327) on March 6, 2008. On April 17, 2009, the Ninth Circuit affirmed the denial of defendant's motion for post-conviction relief. United States v. Fischer, 322 F.App'x 521 (9th Cir. 2009).
On January 14, 2009, defendant filed a Motion for Reconsideration of the Order Denying Relief under 28 U.S.C. § 2255  under Rule 60(b) of the Federal Rules of Civil Procedure seeking re-sentencing. This court denied defendant's motion (366) and defendant filed a Notice of Appeal [381) on July 7, 2009. On September 14, 2009, the Ninth Circuit remanded the case for the limited purpose of granting or denying a Certificate of Appealability (394]. On November 16, 2009, this court issued an Order (395) denying the defendant's Certificate of Appealability, and, on November 23, 2009, defendant filed Notice of Appeal (398) regarding that decision. On December 28, 2009, defendant filed a Motion under Rule 60(b)(6) for Relief from Final Judgment [408). On March 15, 2010, this court issued an Order (412) denying defendant's motion as moot pending his appeal. On April 1, 2010, defendant filed a Verified Motion to Reconsider Order Denying Relief Under Rule 60(b)(6) (417]. On July 30, 2010, the Ninth Circuit issued an Order (424) denying his request for a Certificate of Appealability and all other outstanding motions and requests as moot.
On June 10, 2014, defendant filed a Petition for Writ of Audita Querala [431) pursuant to the All Writs Act, 28 U.S.C. § 1651, seeking equitable relief from his sentence on the theory that the MDMA Sentencing Guidelines are flawed. Defendant argues that he is not making a claim that Booker should be applied retroactively to his case. Pet. Reply (435] at 3. Rather, defendant argues that the All Writs Act gives "vast latitude" to a district court to "remedy and correct an injustice." Id. He argues that evidence challenging the propriety of the MDMA Guidelines has only become available to him recently. In his opening brief, defendant submits as an exhibit the transcript of expert testimony regarding the reputed harms of MDMA in a criminal case in the United States District Court for the Southern District of New York involving a challenge to the MDMA Guidelines. United States v. McCarthy, No. 09 Cr. 1136, 2011 WL 1991146 (S.D.N.Y. May 19, 2011). In that case, the court adopted a marijuana equivalency ratio of 200:1 for MDMA, down from the 500:1 ratio recommended by the Guidelines. Id. at *4. Before reaching the merits of defendant's argument, however, this court must first decide the availability of the writ of audita querala given the facts in this case, and, if the writ does not apply, whether the challenge to defendant's sentence should be construed as a second or successive habeas challenge under 28 U.S.C. § 2255. On October 16, 2014, counsel filed a letter  written by defendant. It was missing the last page so defendant's complete letter  was also docketed on October 20, 2014.
a. The All Writs Act and the Writ of Audita Querela
The All Writs Act states 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. The Supreme Court has interpreted the All Writs Act as a "residual source of authority to issue writs that are not otherwise covered by statute." Pennsylvania Bureau of Correction v. US. Marshals Serv., 474 U.S. 34, 43 (1985). But "[w]here a statute specifically addresses the particular issue at hand, " the Court has said that "it is that authority and not the All Writs Act, that is controlling." Id.
The writ of audita querela, meaning literally "the complaint having been heard, " is a common law writ used to attack a judgment that was correct when rendered, but which later became incorrect because of circumstances that arose after the fact. Carrington v. United States, 503 F.3d 888, 890 n. 2 (9th Cir. 2007). The writ is similar, but not identical, to the writ of error coram nobis; audita querala is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable, whereas coram nobis attacks the judgment itself. See United States v. Torres, 282 F.3d 1241, 1245 n.6 (10th Cir. 2002) (explaining that unlike coram nobis, which is "used to attack a judgment that was infirm at the time it issued, for reasons that later came to light, " audita querela is "used to challenge a judgment that was correct at the time rendered but which is rendered infirm by matters which arise after its rendition") (brackets and internal quotation marks omitted). The Ninth Circuit has stated that the difference between coram nobis and audita querela, however, is largely "one of timing, not substance." Doe v. immigration and Naturalization Service, 120 F.3d 200, 203 n.4 (9th Cir. 1997).
Although Rule 60(b) of the Federal Rules of Civil Procedure expressly abolished the application of the writ of audita querela to civil judgments in 1946, the Supreme Court held in United States v. Morgan, that the writ of error coram nobis was still available in criminal proceedings under the All Writs Act, 28 U.S.C.A. § 1651(a), where it was needed to fill a gap in the federal post-conviction remedial scheme. 346 U.S. 502, 511 (1954). The Court limited the availability of the writ to "extraordinary" cases presenting circumstances compelling its use "to achieve justice." Id at 511.
Likewise, courts have acknowledged that the writ of audita querela might survive in criminal adjudications, if there is a gap for it to fill. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir. 2001); see also United States v. Richter, 510 F.3d 103, 104 (2d Cir. 2007) (stating that the writ is probably available where there is a legal objection to a conviction that has arisen after the conviction and is not redressable pursuant to another post-conviction remedy). If it has survived, courts agree that its use is limited to very narrow circumstances. Doe, 120 F.3d at 204 n.5; see also United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993) (stating that "audita querela is a slender reed upon which to ...