United States District Court, D. Montana, Billings Division
P. WATTERS, UNITED STATES DISTRICT JUDGE
30, 2017, the Court received from Defendant Foster a document
titled "Petition for Writ of Audita
Querela." In the petition, Foster asks the Court to
apply Amendment 794 of the United States Sentencing
Guidelines to his case.
not the first time Foster has made this request. On May 16,
2017, he filed a motion under 18 U.S.C. § 3582(c). The
motion was denied on May 18, 2017, when the Court found that
no provision of 18 U.S.C. § 3582(c) authorized the
re-opening of Foster's sentencing proceeding.
See Order (Doc. 98) at 3-5. Thus, the petition
represents Foster's attempt to find law supporting the
re-opening of the sentencing phase of his case. See
Pet. (Doc. 1) at 2.
position is understandable. Amendment 794 went into effect
four days after his sentencing and so may reasonably appear
to be a missed opportunity. But, for a few reasons, Amendment
794 was not a silver bullet, and Foster also has no
procedural path available to make it apply in his case.
Amendment 794 was a clarifying amendment. It did not
substantively alter the definition of who qualifies for a
minor-role reduction. Moreover, the amendment adopted the
approach that was already being used in the Ninth Circuit
when Foster was sentenced. See United States v.
Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. May 17,
2016). For that reason, Foster would be in the same position
he is now if Amendment 794 had become effective four years
before his sentencing, rather than four days after it.
even if Foster had sought the benefit of the amendment in his
direct appeal, see Pet. at 2 ("his appeal was
open when Amendment 794 was enacted"), he would not have
received it. In Quintero, the defendant sought a
role reduction under U.S.S.G. § 3B1.2 at sentencing, was
denied it, and appealed the issue. But Foster did not seek a
role reduction at sentencing. Although he took an appeal, he
agreed to dismiss it, see Order at 1, United
States v. Foster, No. 15-30333 (9th Cir. Aug. 22, 2016)
(Doc. 87), presumably because he waived his right to appeal
in the plea agreement, see Plea Agreement (Doc. 32)
at 7 ¶ 8. In other words, Foster is now seeking a
benefit he would not have obtained even if he requested it at
the first possible moment.
as the Court has already pointed out, "it is not
possible to say that Foster was so clearly deserving of a
minor role reduction that no competent counsel could have
failed to seek it." Order (Doc. 98) at 4 (citing
Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). Amendment 794 does not support a claim that
Foster's counsel erred in some fundamental way, largely
because it did not change the law of the Ninth Circuit. So
Foster cannot get at the benefit of the amendment via the
indirect route of an ineffective assistance of counsel claim.
In fact, even if Foster could show that counsel was
ineffective, he has already filed a § 2255 motion and
may not file another in this Court unless the Ninth Circuit
Court of Appeals authorizes him to do so. See 28
U.S.C. § 2255(h); Burton v. Stewart, 549 U.S.
147, 149 (2007) (per curiam).
common-law writs such as audita querela are
available "only to the extent that they fill
'gaps' in the current systems of postconviction
relief." United States v. Valdez-Pacheco, 237
F.3d 1077, 1079 (9th Cir. 2001) (per curiam); see also
United States v. Carrington, 503 F.3d 888, 890-91 (9th
Cir. 2007). Foster not only had a chance to file a §
2255 motion but did so. Amendment 794 went into effect ten
months before he filed that motion, so Foster had an
"unobstructed procedural shot" at presenting a
claim based on the amendment, on sentencing counsel's
decision not to seek a role adjustment in light of it, or on
appellate counsel's decision not to raise the issue.
Compare Stephens v. Herrera, 464 F.3d 895, 898 (9th
Cir. 2006) (internal quotation marks and citation omitted).
This is not to say that Foster could have obtained relief if
he had brought the claim sooner. The point is that Foster
cannot show a "gap" in the current system of
postconviction relief, and that means the writ of audita
querela is not available. Valdez-Pacheco, 237
F.3d at 1079-80.
extent a certificate of appealability must be addressed, it
is denied. Foster has not made a showing that he was deprived
of a constitutional right, see 28 U.S.C. §
2253(c)(2), and reasonable jurists would not encourage
further proceedings, Gonzalez v. Thaler, 565 U.S.
134, 140-41 (2012) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)).
IT IS HEREBY ORDERED:
1. Foster's "Petition for Writ of Audita
Querela" (Doc. 100) is DISMISSED.
2. A certificate of appealability, if it must be addressed,
is DENIED. The clerk shall immediately process the appeal if
Foster files a Notice of Appeal.
3. The clerk shall ensure that all pending motions in this
case and in CV 17-95-BLG-SPW are terminated and shall close
the civil file ...