United States District Court, D. Massachusetts
MICHAEL P. ANDREWS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE
reasons stated below, the Court will deny the petition and
dismiss the action without prejudice.
the Court is pro se prisoner Michael P. Andrews' petition
for a writ under the All Writs Act, 28 U.S.C. §1651,
specifically a writ of audita querela. On April 1, 2015, the
Court resentenced the petitioner to 108 months' custody
for one count of conspiracy to possess with intent to
distribute at least 500 grams or more of cocaine and at least
100 grams or more of heroin. United States v.
Andrews. 1 l-cr-10062, Judgment, ECF No. 1065.
Petitioner did not appeal the sentence, nor did he file a 28
U.S.C. §2255 motion to challenge the sentence. Twenty
months later, on December 15, 2016, plaintiff filed a
petition styled as a motion pursuant to "28 U.S.C.
§1651, The All Writs Act - for 'New Defense no
Available at the Time of Conviction." The 29-page
petition devotes much attention to the nature of the writ
requested, but little coherent argument as to why petitioner
believes he is entitled to relief. It appears
petitioner's claim is that case law has developed since
his conviction that permits him to challenge sentencing
enhancements. From the relief sought, the plaintiffs recourse
is in the nature of a 28 U.S.C. §2255 motion to vacate,
modify or correct his sentence.
claim, to the extent the Court can discern it at all, appears
to fall within the statutory framework of 28 U.S.C.
§2255,  and therefore a writ of audita querela is
not available. "Failure to raise an available claim does
not permit an end-run around the requirements of § 2255
by resort to § 2241 or the All Writs Act."
United States v. Barrett, 178 F.3d 34, 57 (1st Cir.
1999). "The armamentarium of common-law writs... is thus
available only to fill whatever interstices exist in the
post-conviction remedial scheme made available to federal
prisoners by way of section 2255." Trenkler v.
United States, 536 F.3d 85, 97 (1st Cir. 2008)(citing
United States v. Avala, 894 F.2d 425, 428 (D.C.Cir.
1990). "This gap-filling approach makes it essential for
courts to plot, and then to patrol, the boundaries between
section 2255 and the universe of old common-law writs."
Trenkler. 536 F.3d at 97. "Otherwise, artful
pleaders will tiptoe around those boundaries and frustrate
Congress's discernible intent." kf The Court is
ultimately "guided by the precept that substance trumps
form." Id. "Thus, '[a]ny motion filed
in the district court that imposed the sentence, and
substantively within the scope of § 2255, is a
motion under § 2255, no matter what title the prisoner
plasters on the cover.'" Icf (quoting Melton v.
United States, 359 F.3d 855, 857 (7th Cir.2004)
(emphasis in original). The Court does not convert the
petition to a §2255 motion based upon the great lengths
to which petitioner has gone to argue for a common law writ
and because the contours of the legal claims are unclear if
it were to be treated as §2255. Rather, the Court will
deny the petition because the remedy sought here-a common law
writ- is inappropriate because even if a §2255 motion
would likely be procedurally barred, there is no
postconviction remedy gap to fill by resort to the writ.
foregoing reasons, 1. Petitioner's Motion Under 28 U.S.C.
§1651, the All Writs Act - For New Defense Not Available
at the time of Conviction, is hereby DENIED, 2. This
action is DISMISSED without prejudice. So Ordered.
 Petitioner's request for a common
law writ may be an intentional effort to avoid 28 U.S.C.
§2255 because he may be time barred. Under 28 U.S.C.
§2255, a plaintiff seeking to challenge his sentence may
move pursuant to 28 U.S.C. §2255(a) in the sentencing
court for an order to vacate, set aside or correct the
sentence. A one-year period of limitations applies to file
the motion from the latest of: (1) the date of final
judgment, (2) the date an unlawful or un-Constitutional
government-imposed impediment to filing is removed if it
prevented movant from filing, (3) the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral review,
or (4) the date on which facts supporting the claim or claims
presented could have been discovered through the exercise of
due diligence. See 28 U.S.C. §2255 (f). Here,
no §2255 motion was filed within one year of the
conviction and therefore would be untimely under 28 U.S.C.
§2255(f)(1). Even presuming the post-sentencing case law
cited by petitioner was applicable, such a motion would
likely still be untimely under 28 U.S.C. § 2255(f)(3).
First, Johnson v. United States,135 S.Ct. 2551
(2015), was decided in June 2015. To the extent that
Plaintiff sought, under §2255, to make a
Johnson claim, which recognized a new right, he had
until July 2016 to make such a claim but failed to do so.
Second, Petitioner's reliance on Mathis v. United
States.136 S.Ct. 2243(2016), although a more recent
decision, fares no better because that case did not create a
newly recognized right by the Supreme Court, and therefore
does not extend the time to file under 28 U.S.C.
§2255(f)(3). United States v, Taylor,
No. 16-6223, 2016 WL 7093905, at *4 (10th Cir. Dec. 6,
2016)(citing Dimott v. United States, No.
2:06-CR-26-GZS, 2016 WL 6068114, at *3 (D. Me. Oct. 14,