UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ALFRED LEE APODACA,

Defendant-Appellant.

No. 03-8017

(Wyoming)

(D.C. No. 85-CR-77-B)

ORDER AND JUDGMENT*

Before SEYMOUR, MURPHY, and O'BRIEN, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Alfred Lee Apodaca, acting pro se, appeals the district court's denial of his petition for writ of audita querela. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

In 1985, Apodaca was convicted of, inter alia, engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. On direct appeal, we affirmed. United States v. Apodaca, 843 F.2d 421 (10th Cir.), cert. denied, 488 U.S. 932 (1988). In 1995, he filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255, which the district court denied. We dismissed his attempted appeal because it was untimely. See proceedings in United States v. Apodaca, No. 96-8100 (10th Cir.).

A person is engaged in a continuing criminal enterprise if he violates certain provisions of federal law and, inter alia, "such violation is a part of a continuing series of violations . . . ." 21 U.S.C. § 848(c)(2). The Supreme Court held that "a jury has to agree unanimously about which specific violations make up the continuing series of violations." Richardson v. United States, 526 U.S. 813, 815 (1999) (quotation omitted). Based on Richardson, Apodaca filed a petition for writ of habeas corpus under 28 U.S.C. § 2241 in the Eastern District of Texas.3 The district court denied relief and the Fifth Circuit affirmed. Apodaca v. United States, 275 F.3d 1080 (5th Cir. 2001), cert. denied, 535 U.S. 1073 (2002). In 2002, Apodaca filed his petition in the sentencing court for writ of audita querela, again seeking relief based on Richardson. The district court denied relief because: 1) § 2255 provides the exclusive means for testing his conviction; 2) Apodaca previously filed a § 2255 motion; and therefore, 3) authorization by a panel of this court is a prerequisite to filing a successive § 2255 petition. 28 U.S.C. § § 2255, 2244(b)(3). This appeal followed. Since only legal questions are presented, we review de novo. Morris v. Burnett, 319 F.3d 1254, 1268 (10th Cir. 2003), cert. denied, ____ U.S. ____, 124 S.Ct. 284 (2003).

Discussion

We agree § 2255 provides the exclusive means for Apodaca to test his conviction in the sentencing court, we construe his notice of appeal and appellate brief as an implied application under § 2244(b)(3)(A) to proceed with a successive § 2255 motion, Torres, 282 F.3d at 1246, and we deny such authorization.5

"[T]o allow a petitioner to avoid the bar against successive § 2255 petitions by simply styling a petition under a different name would severely erode the procedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255." Id. "[A] writ of audita querela is not available to a petitioner when other remedies exist, such as a motion to vacate sentence under 28 U.S.C. § 2255." Id. at 1245 (quotation and citation omitted).6 The § 2255 remedy lies "unless it is shown to be inadequate or ineffective to test the legality of the prisoner's detention." Williams v. United States, 323 F.2d 672, 673 (10th Cir. 1963), cert. denied sub nom., 377 U.S. 980 (1964). "[T]he mere fact" that a petitioner "is precluded from filing a second § 2255 petition does not establish that the remedy in § 2255 is inadequate." Caravalho v. Pugh, 177 F.3d 1177, 1179 (10th Cir. 1999).8 That is precisely Apodaca's circumstance.

Because this is a second § 2255 motion, it is barred unless, under 28 U.S.C. § 2244, we certify the petition to contain either newly discovered evidence or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255. Since Apodaca does not allege newly discovered evidence, we consider only the second precondition and decline to certify. Even though Richardson announced a new rule of substantive law retroactively applicable to cases on collateral review, at least for purposes of a first § 2255 motion, United States v. Barajas-Dias, 313 F.3d 1242, 1245 (10th Cir. 2002), it was not "made retroactive to cases on collateral review by the Supreme Court," 28 U.S.C. § 2255, for purposes of enabling a second or successive § 2255 motion. "[A] new rule is not 'made retroactive to cases on collateral review' unless the Supreme Court holds it to be retroactive." Tyler v. Cain, 533 U.S. 656, 663 (2001). The § 2255 remedy is not inadequate or ineffective under the circumstances presented here, Apodaca is simply barred from raising it.

But all prisoner remedies are not foreclosed because of the limitations on § 2255 relief. A petition for a writ of habeas corpus under § 2241 demonstrating actual innocence may be an available remedy,10 as Apodaca well knows; he filed such a petition stating his Richardson claims in the District Court for the Eastern District of Texas, where he failed on the merits. The record thus demonstrates that Apodaca has taken advantage, at least once, of the full panoply of statutory post-conviction remedies, and we identify no gap in the remedial framework.

Accordingly, we AFFIRM the district court's denial of the petition for writ of audita querela and DENY Mr. Apodaca's implied motion for an order authorizing the district court to consider a successive § 2255 motion.

Entered by the Court:

TERRENCE L. O'BRIEN

United States Circuit Judge