Opinion
CASE NO.: 8:03-cr-476-T-23EAJ.
April 20, 2010
ORDER
Romulo Silva submits a "Writ of Error Coram Nobis And/Or Audita Querela" (Doc. 259). Silva pleaded guilty to conspiracy to possess with intent to distribute five or more kilograms of cocaine and was sentenced to one hundred eighty-eight (188) months of imprisonment. (Doc. 255). Silva filed no appeal. On October 7, 2008, Silva filed a motion to vacate pursuant to 28 U.S.C. § 2255. The motion to vacate was denied on the merits (Doc. 257), and Silva filed no appeal. Silva again seeks to attack the validity of his sentence. Neither audita querela norcoram nobis is available after an earlier and unsuccessful motion under 22 U.S.C. § 2255 to obtain an additional review of objections cognizable under 28 U.S.C. § 2255. United States v. Holt, 417 F.3d 1172 (11th Cir. 2005). See also United States v. Arevalo, 2010 WL 935648 (11th Cir. 2010), United States v. Davis, 352 Fed. Appx. 314 (11th Cir. 2009), Morales v. Fla. Dept. Corr., 346 Fed. Appx. 539 (11th Cir. 2009).
This new action is merely a second or successive action that is subject to specific restrictions. Felker v. Turpin, 518 U.S. 651, 664 (1996) ("The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice `abuse of the writ.'"). Section 2255 states that:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain —
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme court, that was previously unavailable.
Silva has not shown that he has obtained permission from the Eleventh Circuit to seek further redress. Silva cannot change the title of the document through which he seeks additional review and escape the preclusion of second or successive proceedings.See, e.g., Wofford v. Scott, 177 F.3d 1236, 1245 (11th Cir. 1999) (a defendant will not be allowed "to use § 2241 simply to escape the restrictions on second or successive § 2255 motions.");Gonzalez v. Sec'y for the Dep't of Corr., 366 F.3d 1253, 1263-64 (11th Cir. 2004) (en banc) ("[this case] concerns the category most frequently seen, which is second or successive § 2255 motions or § 2254 petitions cross-dressed as Rule 60(b) motions. Despite the clothing [the petitioner] put on it, his is not a true Rule 60(b) motion because it does not concern a defect in the earlier § 2255 proceeding which led to the judgment denying relief to [the petitioner]. Stripped to its essence, [the petitioner's] motion attacks the underlying judgment of conviction and sentence itself on grounds not asserted in the prior § 2255 proceeding."). Silva's motion to challenge his sentence, despite the motion's title, must be dismissed as a second or successive motion filed without permission from the circuit court. Gonzalez, 366 F.3d at 1277. ("Because a petitioner's attempt to reopen a final habeas judgment pursuant to Rule 60(b) is to be treated as an application to file a second or successive petition, it ordinarily should be dismissed by the district court pursuant to § 2244(b)(4).").
Accordingly, Silva's "Writ of Error Coram Nobis And/Or Audita Querela" or for a hearing (Doc. 259) is DISMISSED.
ORDERED in Tampa, Florida.