Juan Jackson v. United States , 440 F. App'x 434 ( 2011 )


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  •      Case: 10-11108     Document: 00511600611         Page: 1     Date Filed: 09/13/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    September 13, 2011
    No. 10-11108
    Summary Calendar                        Lyle W. Cayce
    Clerk
    JUAN JACKSON,
    Petitioner-Appellant
    v.
    UNITED STATES OF AMERICA,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:10-CV-1745
    Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    Juan Jackson, federal prisoner # 95377-012, was convicted by a jury of
    aiding and abetting kidnaping in violation of 
    18 U.S.C. §§ 1201
    (a)(1) and 2
    (counts two and three) and unlawfully carrying and using a firearm during the
    commission of a crime in violation of 
    18 U.S.C. § 924
    (c) (count four). He was
    sentenced to life imprisonment on counts two and three, to be served
    concurrently, and 60 months of imprisonment on count four, to be served
    consecutively to the sentences for counts two and three. Jackson seeks leave to
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    Case: 10-11108   Document: 00511600611      Page: 2   Date Filed: 09/13/2011
    No. 10-11108
    proceed in forma pauperis (IFP) on appeal from the district court’s denial of his
    petition for writ of audita querela challenging his sentence in view of United
    States v. Booker, 
    543 U.S. 220
     (2005).
    By moving for leave to proceed IFP on appeal, Jackson is challenging the
    district court’s certification that his appeal presents no nonfrivolous issues and
    is not taken in good faith. See Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir.
    1997). Jackson argues that the writ of audita querela is available because
    Booker established a new rule of constitutional law that was unforeseeable at the
    time of his sentencing, appeal, and habeas petition. He contends that United
    States v. Gentry, 
    432 F.3d 600
    , 605 (5th Cir. 2005), is inapplicable because he
    filed a motion to reopen his criminal case pursuant to a writ of audita querela,
    and not under § 2255. He contends that Booker should be applied retroactively
    under Teague v. Lane, 
    489 U.S. 288
     (1989).
    Jackson cannot assert this claim in a petition for writ of audita querela
    because redress is available under § 2255. See United States v. Banda, 
    1 F.3d 354
    , 356 (5th Cir. 1993). Jackson’s inability to meet the requirements for
    bringing a successive § 2255 motion does not render the § 2255 remedy
    unavailable. See Tolliver v. Dobre, 
    211 F.3d 876
    , 878 (5th Cir. 2000). Jackson’s
    appeal is without arguable merit and is thus frivolous. See Howard v. King, 
    707 F.2d 215
    , 219-20 (5th Cir. 1983). Accordingly, Jackson’s request for leave to
    proceed IFP is denied, and the appeal is dismissed. See 5TH CIR. R. 42.2.
    IFP MOTION DENIED; APPEAL DISMISSED.
    2