July 19, 2005
Points for creativity?
If ever in these crazy modern times you find yourself nostalgic for ancient common law writs, I have a sentencing case for you. Today in US v. Holt, No. 04-15848 (11th Cir. July 19, 2005) (available here), the 11th Circuit faced a Blakely claim raised in a writ of audita querela: "Holt argues that a federal court may vacate a criminal conviction or sentence, pursuant to a writ of audita querela, if there is a legal objection that did not exist at the time the judgment was entered." As the 11th Circuit explains:
Audita querela, Latin for "the complaint having been heard," was an ancient writ used to attack the enforcement of a judgment after it was rendered. Black's Law Dictionary 126 (7th ed. 1999). The common law writ was typically employed a judgment debtor in a civil case against the execution of a judgment because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution. The writ of audita querela was abolished, however, in the civil context by the Federal Rules of Civil Procedure. We have not addressed the writ's continued applicability in the criminal context.
Awarding no points for the defendant's creativity in the invocation of common law writs, the 11th Circuit rejects the defendant's efforts: "We hold that a writ of audita querela may not be granted when relief is cognizable under 28 U.S.C. § 2255, as it is here. Moreover, construing Holt's motion or writ as one made pursuant to § 2255 we find that he has failed to obtain an order from our court authorizing the district court to entertain Holt's second and successive motion for such relief."
July 19, 2005 at 04:15 PM | Permalink
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I have seen a new trend of district courts entertaining section 2255 based on illegal sentencing and ineffective counsel in light of US v Levy in the 11th Circuit.
Posted by: PAUL LUSKIN JD | Jul 27, 2005 11:20:24 AM
How are you?
Posted by: Rene Ortlieb | Jun 4, 2006 11:48:29 PM