United States District Court, W.D. Kentucky, Paducah
B. Russell, Senior Judge.
William Dale Woolum, proceeding pro se, filed the
instant petition captioned as a “PETITION UNDER AND
PURSUANT TO, ‘THE ALL WRITS ACT, ' 28 U.S.C.S
§1651, by either, Common Law writ of ‘Audita
Querela, ' or ‘Habeas Corpus, ' Under 28 U.S.C.
§ 2241, or, other all writs, that the Court may
- deem proper and just, applicable to Defendant's
plight” (DN 1) (emphasis by Plaintiff). On June 28,
2017, the Court entered an Order directing the United States
to file a response to the motion (DN 6). The United States
filed a response (DN 7), and Petitioner filed a reply (DN 8).
federal grand jury indicted Petitioner on two counts of
transmitting altered postal money orders while an inmate in
Eddyville, Kentucky, in 1984. United States v.
Woolum, Criminal Action Number 5:84CR-21-TBR-2.
Petitioner was convicted in this Court on both counts in
December 1984 and sentenced to a ten-year term of
imprisonment to run consecutively with the state sentence he
was then serving. Petitioner appealed, and the Sixth Circuit
affirmed the conviction. See United States v.
Woolum, No. 84-6126, 1985 U.S. App. LEXIS 25690 (6th
Cir. Dec. 5, 1985). Petitioner later filed a motion to alter,
amend or vacate his sentence under 28 U.S.C. § 2255,
which the Court denied on July 27, 1994.
then Petitioner has filed numerous post-conviction motions
challenging his sentence, including his motion recent motion
to amend judgment nunc pro tunc and request for
hearing filed in his criminal action on September 12, 2016,
filed by counsel. In the motion, Petitioner argued that his
ten-year sentence in this Court should be amended to run
concurrently with the state court sentence that he has now
served. In support, he argued that the imposition of a
consecutive sentence was harsh and excessive and that he was
deserving of the requested relief in that he is now
rehabilitated. However, the Court denied the motion finding
that it lacked jurisdiction to modify Petitioner'
review of the instant petition, it is evident that Petitioner
is seeking the same relief as in his most recent motion to
amend nunc pro tunc but now argues that the Court
has jurisdiction under the All Writs Act, the common law writ
of audita querela, or 28 U.S.C. § 2241.
Court explained in its February 9, 2017, Memorandum Opinion
and Order, a district court “does not have inherent
power to resentence defendants at any time.” United
States v. Martin, 913 F.2d 1172, 1174 (6th Cir. 1990)
(quoting United States v. Minor, 846 F.2d 1184, 1187
(9th Cir. 1988)). “As ‘courts of limited
jurisdiction, ' federal courts ‘possess only that
power authorized by Constitution and statute' and may not
expand that power ‘by judicial decree.'”
United States v. Lucido, 612 F.3d 871, 873 (6th Cir.
2010) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). The party seeking to
invoke the court's jurisdiction, in this case Petitioner,
“bears the burden of demonstrating that jurisdictional
prerequisites have been met.” United States v.
Streck, 62 F. App'x 575, 577 (6th Cir. 2003) (citing
Ohio Nat'l Life Ins. Co. v. United States, 922
F.2d 320, 324 (6th Cir. 1990)). However, none of the
provisions cited by Petitioner in the instant petition
provides a basis for this Court to exercise jurisdiction to
modify Petitioner's sentence.
Writs Act, codified at 28 U.S.C. § 1651, provides that
“[t]he Supreme Court and all courts established by Act
of Congress may issue all writs necessary or appropriate
in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28
U.S.C. § 1651 (emphasis added). It is a “residual
source of authority to issue writs that are not otherwise
covered by statute[, and w]here a statute specifically
addresses the particular issue at hand, it is that authority,
and not the All Writs Act, that is controlling.”
Carlisle v. United States, 517 U.S. 416, 429 (1996)
(quoting Pa. Bureau of Corr. v. United States Marshals
Serv., 474 U.S. 34, 43 (1985)). In other words, the All
Writs Act is not an independent grant of jurisdiction to a
court but permits it to issue writs in aid of its
jurisdiction the court independently possesses. Tropf v.
Fidelity Nat. Title Ins. Co., 289 F.3d 929, 943 (6th
Cir. 2002) (holding that federal courts must have an
independent basis for subject matter jurisdiction in order to
issue a writ in aid of such jurisdiction under § 1651).
Therefore, the All Writ Act itself does not confer
jurisdiction to modify Petitioner's sentence.
the writ of audit querela does not provide a basis
for jurisdiction. The writ of audita querela is an
old common law procedure which has been abolished by rule in
civil cases. Fed.R.Civ.P. 60(b). The Supreme Court has held
that Rule 60's abolition of the writ of audita
querela is limited to civil cases. Morgan v. United
States, 346 U.S. 502 (1954). Thus, federal courts have
the authority to grant a writ of audita querela in a
criminal case. However, this relief is extremely limited.
See Melton v. United States, 359 F.3d 855, 856 (7th
Cir. 2004) (where the court noted that the writ of audita
querela “has no apparent relevance to criminal
sentences”); United States v. Banda, 1 F.3d
354, 356 (5th Cir. 1993) (noting that the plaintiff's
reliance upon a writ of audita querela was a
“slender reed upon which to lean” and that
“[i]t is an open question whether the obsolescent writ
survives as a post-conviction remedy”); United
States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982)
(“Our research has failed to discover any criminal case
in which this writ has ever been asked for, let along issued;
it appears to be primarily a remedy of judgment
audita querela relief does survive, it “is
available in criminal cases only to the extent that it fills
gaps in the current system of post-conviction relief.”
Bohannon v. United States, No. 15-6420, 2016 U.S.
App. LEXIS 14755, at *6 (6th Cir. June 28, 2016); United
States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.
2001). If a challenge could have been raised pursuant to 28
U.S.C. § 2255, the writ is not available since there
would be no gap to fill. Bohannon, 2016 U.S. App.
LEXIS 14755, at *6; United States v. Holt, 417 F.3d
1172 (11th Cir. 2005). Furthermore, the fact that a
prisoner's § 2255 motion is procedurally barred is
not enough to allow relief under audita querela.
Frost v. Snyder, 13 F. App'x 243, 248 (6th Cir.
2001) (“It is well settled that a petitioner's
remedy under § 2255 is not inadequate merely because he
is procedurally barred from filing a petition under §
2255, because the district court denied his § 2255
petition, or because he was denied permission to file a
second petition under § 2255.”); United States
v. Valdez-Pacheco, 237 F.3d at 1080.
the Sixth Circuit has articulated that for audita
querela relief to be available, the sentence under
attack must be completed prior to such relief being granted.
Frost v. Snyder, 13 F. App'x at 245 n.1; see
also Polk v. United States, No. 11-1620, 2012 U.S. App.
LEXIS 27042, at *3 (6th Cir. Jan. 31, 2012) (finding relief
under audita querela could not be granted before
inmate had finished serving his sentence and had been
released). Petitioner is ...