United States v. IzQuierdo , 436 F. App'x 929 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10177 AUG 4, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:93-cr-06041-UU-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMON MARTINEZ IZQUIERDO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 4, 2011)
Before TJOFLAT, CARNES and FAY, Circuit Judges.
PER CURIAM:
Ramon Martinez Izquierdo, a federal prisoner appearing pro se, appeals
from the district court’s denial of his petition for a writ of audita querela,
mandamus, or prohibition. He argues that his claim of an illegally enhanced
sentence is not cognizable under 28 U.S.C. § 2255, and, thus, an extraordinary
common-law writ is his only available avenue for relief. For the reasons set forth
below, we affirm.
I.
Martinez Izquierdo was convicted in 1994 of distribution of cocaine, in
violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess with intent to
distribute cocaine, in violation of 21 U.S.C. § 846. He was sentenced to a
mandatory term of life imprisonment pursuant to 21 U.S.C. §§ 841(b)(1)(A) and
851. His direct appeal was dismissed in 1995.
In 2010, Martinez Izquierdo filed pro se, in his criminal case, an “omnibus
petition for writ of audita querela, prohibition, and/or mandamus,” pursuant to the
All Writs Act, 28 U.S.C. § 1651(a). He alleged that the government had served a
copy of the § 851 information only on an attorney who had ceased representing
him by that time, thereby failing to comply with the procedures set forth in
§ 851(a). Accordingly, he sought to vacate his sentence on the ground that the
district court was without jurisdiction to impose the mandatory life sentence.
He further opined that sentencing issues such as this are not cognizable
under § 2255, and, thus, he was entitled to seek relief through an extraordinary
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writ. Finally, he added that a writ of mandamus could be available for the purpose
of compelling the United States Attorney or the probation office to “adher[e] to the
directives of 28 U.S.C. § 994 [and] 21 U.S.C. § 851,” and that a writ of prohibition
could be used to prevent the probation office from imposing the illegal life
sentence.
The district court denied the petition on the ground that Martinez
Izquierdo’s claim came within the scope of § 2255, and, thus, he could not seek
relief through a writ of audita querela or any other common-law writ.
II.
We review de novo the question of whether a prisoner may challenge his
sentence through a petition for a common-law extraordinary writ. See United
States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005).
Post-conviction relief is available to a federal prisoner under § 2255 where
“the sentence was imposed in violation of the Constitution or laws of the United
States, or . . . the court was without jurisdiction to impose such sentence, or . . . the
sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a).
A § 851 information setting forth a defendant’s prior felony drug convictions is
used to increase the statutory mandatory minimum and maximum sentences to
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which he is subject for a conviction under § 841. See 21 U.S.C. §§ 841(b),
851(a)(1).
Certain common-law writs may be used to “fill the interstices of the federal
post-conviction remedial framework.” Holt, 417 F.3d at 1174-75 (quotation
omitted). Yet “[a] writ of audita querela may not be granted when relief is
cognizable under § 2255,” regardless of whether a § 2255 motion would have
succeeded. Id. at 1175. “[T]he district court has original jurisdiction over a
mandamus action to compel an officer or employee of the United States or any
agency thereof to perform a duty owed to the plaintiff.” Cash v. Barnhart, 327
F.3d 1252, 1257 (11th Cir. 2003) (quotation omitted). The extraordinary remedy
of a writ of mandamus is appropriate only if the petitioner “has exhausted all other
avenues of relief and only if the defendant owes him a clear nondiscretionary
duty.” Id. at 1258 (quotation omitted). A writ of prohibition, which requires a
showing of “exceptional circumstances amounting to a judicial usurpation of
power,” is reserved for extraordinary cases in which “the right to relief is clear and
undisputable” and the regular judicial-review process is inadequate to address the
petitioner’s claim. See In re Wainwright, 678 F.2d 951, 953 (11th Cir. 1982).
Martinez Izquierdo’s collateral attack on his sentence essentially claims that
the government’s and district court’s failure to comply with § 851 resulted in a
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“sentence [that] was in excess of the maximum authorized by” § 841 and, thus,
“was imposed in violation of the . . . laws of the United States.” See § 2255(a).
Furthermore, he argues that the failure to comply strictly with § 851 deprived the
district court of jurisdiction to impose the life sentence, which likewise falls
within the ambit of § 2255(a). Accordingly, the district court correctly determined
that the § 2255 framework is the proper avenue for Martinez Izquierdo’s collateral
attack and that a common-law writ cannot afford the requested relief. See Holt,
417 F.3d at 1175; Cash, 327 F.3d at 1258; Wainwright, 678 F.2d at 953.
Additionally, Martinez Izquierdo has identified no basis on which we could order
the prosecutor to comply with § 851 retroactively or could order the probation
office to disregard the existing sentence absent a grant of § 2255 relief. See Cash,
327 F.3d at 1257-58; Wainwright, 678 F.2d at 953.1
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
1
Federal courts are obligated to “look behind the label of a motion filed by a pro se
inmate and determine whether the motion is, in effect, cognizable under a different remedial
statutory framework.” United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990); see also
Holt, 417 F.3d at 1175 (noting that the motion for a writ of audita querela could be liberally
construed as a § 2255 motion but that such a motion would have been impermissibly successive).
Martinez Izquierdo filed his motion for a writ of audita querela approximately 15 years after his
conviction became final, and the motion does not allege any basis on which the one-year statute
of limitations in § 2255 would have been tolled. See § 2255(f). As Martinez Izquierdo’s claim
would have been time-barred pursuant to § 2255(f), the district court did not err in declining to
review the merits of the claim under the § 2255 framework. See Holt, 417 F.3d at 1175.
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