Thursday, December 2, 2010

Writ of audita querela unavailable where postconviction relief is otherwise available

United States v. Brown, No. 1:99cr75, 2010 WL 4818013 (W.D.N.C. Nov. 22, 2010):

Defendant moved pursuant to the ancient writ of audita querela claiming that he is not actually the person named in the indictment because his identify was stolen.  The writ is not available to a federal prisoner where postconviction relief would be cognizable pursuant to 28 U.S.C. § 2255.  Defendant may not avoid AEDPA's requirements for filing a second or successive § 2255 motion by filing a petition for a writ of audita querela instead.

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