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  • United States v. McRae, 4th Cir. (2009)

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Michael McRae's petition for a writ of audita querela. The court found that while the district court addressed McRae's claim on the merits, the petition was essentially a successive motion under 28 U.S.C. § 2255 over which the district court lacked jurisdiction. The court also denied McRae's motions for appointment of counsel and a transcript at government expense.

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    Filed: 2009-12-31 Precedential Status: Non-Precedential Docket: 09-7881

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    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Michael McRae's petition for a writ of audita querela. The court found that while the district court addressed McRae's claim on the merits, the petition was essentially a successive motion under 28 U.S.C. § 2255 over which the district court lacked jurisdiction. The court also denied McRae's motions for appointment of counsel and a transcript at government expense.

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    Public Domain
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    2 views3 pages

    United States v. McRae, 4th Cir. (2009)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed the district court's denial of Michael McRae's petition for a writ of audita querela. The court found that while the district court addressed McRae's claim on the merits, the petition was essentially a successive motion under 28 U.S.C. § 2255 over which the district court lacked jurisdiction. The court also denied McRae's motions for appointment of counsel and a transcript at government expense.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 09-7881

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    MICHAEL SCOTT MCRAE,
    Defendant - Appellant.

    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Raleigh.
    Malcolm J. Howard,
    Senior District Judge. (5:97-cr-00094-H-6)

    Submitted:

    December 17, 2009

    Decided:

    December 31, 2009

    Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Michael Scott McRae, Appellant Pro Se.


    Rudolf A. Renfer, Jr.,
    Robert Edward
    Skiver,
    Assistant
    United
    States
    Attorneys,
    Raleigh, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Michael Scott McRae appeals the district courts order
    denying his petition for a writ of audita querela on the ground
    that United States v. Booker, 543 U.S. 220 (2005), did not apply
    retroactively to his case.
    no

    reversible

    McRaes

    claim

    error.
    on

    We have reviewed the record and find

    Although

    the

    merits,

    the

    we

    district

    find

    that

    court
    the

    addressed

    petition

    was

    tantamount to a successive motion under 28 U.S.C.A. 2255 (West


    Supp. 2009), over which the district court lacked jurisdiction.
    The

    fact

    obtains

    that

    McRae

    cannot

    authorization

    from

    proceed
    this

    under

    court

    to

    2255
    file

    unless

    he

    successive

    motion does not alter our conclusion.

    See Carrington v. United

    States,

    2007)

    503

    F.3d

    888,

    890

    (9th

    Cir.

    ([T]he

    statutory

    limits on second or successive habeas petitions do not create a


    gap in the post-conviction landscape that can be filled with
    the common law writs.), opinion amended on other grounds on
    denial of rehg, 530 F.3d 1183 (9th Cir. 2008); United States v.
    Torres,
    audita

    282

    F.3d

    querela

    is

    1241,
    not

    1245

    (10th

    available

    to

    Cir.
    a

    2002)

    ([A]

    petitioner

    writ

    when

    of

    other

    remedies exist, such as a motion to vacate sentence under 28


    U.S.C.[A.]
    omitted).

    2255.)

    (internal

    quotation

    marks

    and

    Accordingly, we affirm the denial of relief.

    citation
    We deny

    McRaes motions for appointment of counsel and for a transcript


    at government expense.

    We dispense with oral argument because


    2

    the facts and legal contentions are adequately presented in the


    materials

    before

    the

    court

    and

    argument

    would

    not

    aid

    the

    decisional process.
    AFFIRMED

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