United States v. Diggs

Fifth Circuit

United States v. Diggs

283 F. App'x 223

CourtCourt of Appeals for the Fifth Circuit

DecidedJune 19, 2008

Docket07-10743

StatusUnpublished

Cited by1 cases

This text of 283 F. App'x 223 (United States v. Diggs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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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United States v. Diggs, 283 F. App'x 223 (5th Cir. 2008).

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Opinion

PER CURIAM: *

Cedrick Diggs, federal prisoner #27072-177, appeals the district court’s denial of his request for a writ of audita querela challenging his sentences for conspiracy to obstruct interstate commerce by robbery and using and carrying a firearm during a crime of violence. Diggs argues that the sentences imposed for his crimes were too harsh and that the sentences violated his constitutional rights.

Regardless of the label affixed to Diggs’s motion, it was a collateral challenge to the sentences imposed by the district court and therefore fell within the purview of 28 U.S.C. § 2255. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir.1987). Therefore, audita querela was not the proper vehicle for Diggs’s claims. See Banda, 1 F.3d at 356.

Diggs has previously filed a § 2255 motion. His present motion was successive, and he was required to obtain this court’s authorization to file it. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Because he did not do so, the district court properly denied his motion. As Diggs’s appeal is without arguable merit, see Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983), it is dismissed as frivolous. See id.; 5th Cir. R. 42.2.

APPEAL DISMISSED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Cedrick Diggs, federal prisoner #27072-177, appeals the district court’s denial of his request for a writ of audita querela challenging his sentences for conspiracy to obstruct interstate commerce by robbery and using and carrying a firearm during a crime of violence. Diggs argues that the sentences imposed for his crimes were too harsh and that the sentences violated his constitutional rights.

Regardless of the label affixed to Diggs’s motion, it was a collateral challenge to the sentences imposed by the district court and therefore fell within the purview of 28 U.S.C. § 2255. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Solsona v. Warden, F.C.I., 821 F.2d 1129, 1131-32 (5th Cir.1987). Therefore, audita querela was not the proper vehicle for Diggs’s claims. See Banda, 1 F.3d at 356.

Diggs has previously filed a § 2255 motion. His present motion was successive, and he was required to obtain this court’s authorization to file it. See 28 U.S.C. §§ 2244(b)(3), 2255(h). Because he did not do so, the district court properly denied his motion. As Diggs’s appeal is without arguable merit, see Howard v. King, 707 F.2d 215, 219-20 (5th Cir.1983), it is dismissed as frivolous. See id.; 5th Cir. R. 42.2.

APPEAL DISMISSED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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283 F. App'x 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diggs-ca5-2008.

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