December 4, 2007
Second Circuit confirms writ of audita querela as a viable "hail mary" motion
A tiny per curiam opinion today from the Second Circuit in US v. Richter, No. 06-1930 (2d Cir. Dec. 4, 2007) (available here), has an important sentence that could be a very big deal for criminal defendants needing a special avenue to get into the courthouse door. In Richter, the panel denies a petitioner's writ of audita querela, but has this important line along the way: "if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie."
I think this could mean that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer. Of course, as Baltimore Raven fans know well, even when a last-minute hail mary pass connects, victory is not assured. Still, the Second Circuit's acknowledgement that a writ of audita querela is sometimes available seems of great import.
December 4, 2007 at 03:54 PM | Permalink
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It seems strange for the Second Circuit to say that a writ of audita querela might be available if there are "serious constitutional questions," as opposed to when something unconstitutional has actually happened.
If that's the standard, then all you need is a plausible argument, and the goal of the petitioner's lawyer becomes making the case seem complicated rather than necessarily favorable to his client.
Perhaps I've missed something. I realize that the Second Circuit's rule isn't radical or even very different from other doctrines the courts use to dodge constitutional questions, but this one seems particularly prone to mischief.
Posted by: | Dec 4, 2007 4:04:29 PM
Court: "if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie."
Doug B.: "I think this could means that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer."
Your premise, I gather, is that the availability of collateral attack is a constitutional requirement for "a really strong substantive claim." It clearly wasn't at the time the Constitution and the Bill of Rights were adopted, so that would have to be based on a "living constitution" view.
Posted by: Kent Scheidegger | Dec 4, 2007 4:51:06 PM
Dear mr. Scheidegger,
Interesting articles, are your lessons also open for exchange students like me?
Posted by: Geld Lenen | Dec 4, 2007 4:59:59 PM
Yeah, right. An audita querela writ, like an error coram nobis, isn't Latin, but is, I guess, ebonics because only ebonics was new enough when "Constitution and the Bill of Rights were adopted."
Posted by: George | Dec 4, 2007 5:44:14 PM
If the constitution isn't living, when did it die?
Posted by: S.cotus | Dec 4, 2007 6:41:54 PM
Don't you remember the Contract on America, S.cotus? Think Nuke and Newt.
Posted by: George | Dec 4, 2007 7:42:17 PM
Once again, S.cotus' snark is masquerading as erudition.
Posted by: federalist | Dec 4, 2007 8:28:51 PM
There have been a few cases that deal with the idea that the AEDPA's limits on 2255 motions are not applicable to all collateral attacks - at least for federal prisoners. For example, see In re Hanserd, 123 F.3d 922 (6th Cir. 1997). However, I believe the exceptions to the AEDPA's limits are extremely narrow.
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