In Re Rushing-Floyd

Fourth Circuit

In Re Rushing-Floyd

62 F. App'x 64

CourtCourt of Appeals for the Fourth Circuit

DecidedMay 5, 2003

Docket03-6380

StatusUnpublished

Cited by1 cases

This text of 62 F. App'x 64 (In Re Rushing-Floyd) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In Re Rushing-Floyd, 62 F. App'x 64 (4th Cir. 2003).

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Opinion

PER CURIAM.

Elizabeth Marie Rushing-Floyd has filed a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651 (2000), seeking an order to set aside her money laundering convictions and 293-month sentence. Relief under the All Writs Act is a drastic remedy and should be used only in extraordinary circumstances. See Kerr v. United States Dist Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987).

We find that Floyd is not entitled to such extraordinary relief because she could have raised her claims in a motion under 28 U.S.C. § 2255 (2000). See Carlisle v. United States, 517 U.S. 416, 429, *65 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996); United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.2002). The fact that Floyd was unable to obtain relief under § 2255 does not alter our conclusion. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001) (“A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs.”); In re Jones, 226 F.3d 328, 333 (4th Cir.2000).

We therefore deny Floyd’s petition for a writ of audita querela. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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PER CURIAM.

Elizabeth Marie Rushing-Floyd has filed a petition for a writ of audita querela under the All Writs Act, 28 U.S.C. § 1651 (2000), seeking an order to set aside her money laundering convictions and 293-month sentence. Relief under the All Writs Act is a drastic remedy and should be used only in extraordinary circumstances. See Kerr v. United States Dist Court, 426 U.S. 394, 402, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976); In re Beard, 811 F.2d 818, 826 (4th Cir.1987).

We find that Floyd is not entitled to such extraordinary relief because she could have raised her claims in a motion under 28 U.S.C. § 2255 (2000). See Carlisle v. United States, 517 U.S. 416, 429, *65 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996); United States v. Torres, 282 F.3d 1241, 1245 (10th Cir.2002). The fact that Floyd was unable to obtain relief under § 2255 does not alter our conclusion. See United States v. Valdez-Pacheco, 237 F.3d 1077, 1080 (9th Cir.2001) (“A prisoner may not circumvent valid congressional limitations on collateral attacks by asserting that those very limitations create a gap in the postconviction remedies that must be filled by the common law writs.”); In re Jones, 226 F.3d 328, 333 (4th Cir.2000).

We therefore deny Floyd’s petition for a writ of audita querela. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED.

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