United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the defendant's pro
se "Request for Adjustment of Sentence Under the
'Holloway Doctrine' . . . Pursuant to Writ of Audita
Querela and or Fed.R.Civ.P. 60(d)" (filing 120). The
defendant's motion must, unfortunately, be denied.
defendant was convicted in 2002 after a jury trial of one
count of conspiracy to distribute and possess with intent to
distribute more than 500 grams of methamphetamine, one count
of possession with intent to distribute methamphetamine, and
possession of a firearm during a drug trafficking crime.
See filing 35; filing 44; filing 60. He had
previously been convicted of two felony drug offenses. Filing
39. So, pursuant to 21 U.S.C. § 841(b)(1), he was
subject to "a mandatory term of life imprisonment
without release" on the conspiracy count. See
filing 69-2 at 8-9. He was sentenced to life imprisonment on
that count, a concurrent sentence of 480 months'
imprisonment for possession with intent to distribute, and a
consecutive sentence of 60 months' imprisonment on the
firearm count. Filing 60 at 2.
defendant filed a motion for writ of error coram nobis
(filing 94) in 2005 that the Court denied. Filing 98. He
filed a motion for reduced sentence pursuant to 18 U.S.C.
§ 3582(c)(2) (filing 106) in 2007, which the Court also
denied. Filing 110. And then he filed a § 2255 motion
(filing 111) in 2011, which the Court denied as untimely.
basis of the defendant's new motion is United States
v. Holloway, 68 F.Supp.3d 310, 312 (E.D.N.Y. 2014), in
which a petitioner filed a motion to reopen his 28 U.S.C.
§ 2255 proceedings and the district court, recognizing
its lack of authority to grant the motion, nonetheless asked
the U.S. Attorney to consider agreeing to an order vacating
some of the petitioner's convictions, noting the
petitioner's extraordinary rehabilitation.
Holloway, 68 F.Supp.3d at 314-15. And the U.S.
Attorney agreed to permit the petitioner to be resentenced.
Id. at 315-16.
Holloway does not stand for the proposition that the
Court has general authority to resentence a defendant-and it
doesn't. See Dillon v. United States, 560 U.S.
817, 819 (2010). Courts are, in fact,
strictly limited in their ability to modify sentences.
Indeed, as a general matter, "court[s] may not modify a
term of imprisonment once it has been imposed." 18
U.S.C. § 3582(c). There are only three narrow exceptions
to this rule: a court can modify a term of imprisonment (1)
upon motion of the Bureau of Prisons; (2) when expressly
permitted by statute; or (3) when the applicable sentencing
range of the U.S. Sentencing Guidelines has been amended and
made retroactive. See 18 U.S.C. §§
3582(c)(1)(A), (c)(1)(B), (c)(2).
United States v. Ledezma-Rodriguez, 249 F.Supp.3d
979, 981-82 (S.D. Iowa 2017). And none of those provisions
are invoked here, meaning there is no basis to conclude that
the Court has authority to reduce the defendant's
sentence. See id.
the defendant relies first on Rule 60(d). But as Rule 60(d)
provides relief from a civil judgment, it can only
be directed at the denial of the defendant's § 2255
motion. And the defendant claims to be disclaiming any
reliance on constitutional violations, presumably to avoid
his current motion being construed as a second or successive
§ 2255 motion. Filing 120 at 2. The problem, though, is
that there's no other way to construe it-because
the defendant seeks relief from his underlying conviction,
instead of raising a defect in the integrity of his federal
habeas proceedings, it can only be a "second or
successive" § 2255 motion, requiring authorization
from the Court of Appeals that the defendant does not have.
See § 2255(h); see also Gonzalez
v. Crosby, 545 U.S. 524, 531-32 (2005); Williams v.
Kelley, 854 F.3d 1002, 1009 (8th Cir. 2017); United
States v. Lee, 792 F.3d 1021, 1023-25 (8th Cir. 2015);
United States v. Lambros, 404 F.3d 1034, 1036-37
(8th Cir. 2005). The defendant's disclaimer of
constitutional grounds for relief only means that his motion
is cognizable under neither Rule 60(d) nor § 2255
defendant also relies on the common-law writ of audita
querela: "a writ, it is said, of a most remedial
nature, and invented lest in any case there should be an
oppressive defect of justice, where a party who has a good
defence is too late in making it in the ordinary forms of law
. . . ." Humphreys v. Leggett, 50 U.S. 297, 313
(1850) (cleaned up). But that does not avail the defendant
either. Most fundamentally, at least in the civil context,
Rule 60 "made clear that nearly all of the old forms of
obtaining relief from a judgment"-including audita
querela-have "been abolished." United
States v. Beggerly, 524 U.S. 38, 44-45 (1998). To the
extent that audita querela exists in the criminal
context, it would only be "to plug a gap in the system
of federal postconviction remedies"-and it is doubtful
that such a gap exists. See United States v.
Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982).
any event, the defendant does not identify any good defense
to the charges of which he stands convicted-he expressly
states that he "no longer contests his guilt[.]"
Filing 120 at 2. The sentence of life imprisonment he seeks
to avoid is, in fact, a mandatory consequence of a charge he
does not contest. To the extent that audita querela
might be available, it is only "where there is a legal,
as contrasted with an equitable, objection to a conviction
that has arisen subsequent to the conviction and that is not
redressable pursuant to another post-conviction remedy."
United States v. Richter, 510 F.3d 103, 104 (2d Cir.
2007). In other words,
a claim that a criminal conviction is inequitable or unfair,
or even grossly unfair, does not constitute a defense to, or
discharge from, that conviction. Audita querela is
not a wand which may be waved over an otherwise valid
criminal conviction, causing its disappearance; rather, it
provides relief from the consequences of a conviction when a
defense or discharge arises subsequent to entry of the final
judgment. The defense or discharge must be a legal defect in
the conviction, or in the sentence which taints the