Opinion
No. 07-10743 Conference Calendar.
June 19, 2008.
Cedrick Diggs, Medical Center for Federal Prisoners Springfield, Springfield, MO, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:01-CR-177-1.
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
Cedrick Diggs, federal prisoner # 27072-177, appeals the district court's denial of his request for a writ of audita querela challenging his sentences for conspiracy to obstruct interstate commerce by robbery and using and carrying a firearm during a crime of violence. Diggs argues that the sentences imposed for his crimes were too harsh and that the sentences violated his constitutional rights.
Regardless of the label affixed to Diggs's motion, it was a collateral challenge to the sentences imposed by the district court and therefore fell within the purview of 28 U.S.C. § 2255. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir. 1987). Therefore, audita querela was not the proper vehicle for Diggs's claims. See Banda, 1 F.3d at 356.
Diggs has previously filed a § 2255 motion. His present motion was successive, and he was required to obtain this court's authorization to file it. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Because he did not do so, the district court properly denied his motion. As Diggs's appeal is without arguable merit, see Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983), it is dismissed as frivolous. See id.; 5TH CIR. R. 42.2.
APPEAL DISMISSED.