Joe Patron v. Rick Thaler, Director , 360 F. App'x 588 ( 2010 )


Menu:
  •      Case: 09-10452     Document: 00511005351          Page: 1    Date Filed: 01/15/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    January 15, 2010
    No. 09-10452
    Summary Calendar                    Charles R. Fulbruge III
    Clerk
    JOE ROBERT PATRON,
    Petitioner-Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
    CORRECTIONAL INSTITUTIONS DIVISON,
    Respondent-Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 4:09-CV-82
    Before KING, STEWART, and HAYNES, Circuit Judges.
    PER CURIAM:*
    Joe Robert Patron, Texas prisoner # 1176158, seeks a certificate of
    appealability (COA) from the dismissal of his petition for writ of audita querela,
    in which he challenged his conviction and sentence for aggravated sexual assault
    of a child. A COA is not required for Patron to appeal. See 
    28 U.S.C. § 2253
    (c).
    We may affirm the district court’s judgment on any basis supported by the
    record. See Scott v. Johnson, 
    227 F.3d 260
    , 262 (5th Cir. 2000) (denial of § 2255
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10452   Document: 00511005351 Page: 2        Date Filed: 01/15/2010
    No. 09-10452
    motion). The district court correctly dismissed Patron’s petition for writ of
    audita querela because redress was available to Patron under 
    28 U.S.C. § 2254
    .
    See United States v. Banda, 
    1 F.3d 354
    , 356 (5th Cir. 1993); Tolliver v. Dobre,
    
    211 F.3d 876
    , 878 (5th Cir. 2000); see also Felker v. Turpin, 
    518 U.S. 651
    , 662
    (1996). It is irrelevant that Patron can no longer meet the standard for bringing
    a timely § 2254 petition. Cf. Tolliver, 
    211 F.3d at 878
     (holding that fact that
    federal prisoner filed unsuccessful 
    28 U.S.C. § 2255
     motion or that federal
    prisoner cannot meet requirements for filing successive § 2255 motion does not
    render § 2255 remedy unavailable).
    Accordingly, Patron’s motion for a COA is DENIED as unnecessary and
    the judgment of the district court is AFFIRMED.
    2
    

Document Info

Docket Number: 09-10452

Citation Numbers: 360 F. App'x 588

Judges: Haynes, King, Per Curiam, Stewart

Filed Date: 1/15/2010

Precedential Status: Non-Precedential

Modified Date: 8/2/2023