United States v. Diodayan Ledesma-Cuesta

476 F. App'x 412

• Court: Court of Appeals for the Third Circuit
• Decided: August 27, 2012
• Docket: 12-2126
• Status: Unpublished

Opinion

OPINION

PER CURIAM.

Diodayan Ledesma-Cuesta appeals an order denying 1) his request for audita querela relief under 28 U.S.C. § 1651 and 2) his motion for correction of a clerical error in the criminal judgment pursuant to Fed.R.Crim.P. 36. Finding no substantial question to be presented by this appeal, we will summarily affirm. 1 In a previous opinion, we explained to the appellant that attacks on his federal conviction and sentence must generally be pursued via 28 U.S.C. § 2255, which in his case would require seeking authorization from this Court; he has not done so, and nothing in the interim has altered the unavailability of the writ of audita querela. See United States v. Ledesmar-Cuesta, 443 Fed.Appx. 685, 685-86 (3d Cir.2011). Furthermore, we agree with the District Court that there is no clear clerical error in the judgment, especially as the superseding indictment contains the same offense-conclusion date reflected in the judgment. 2 Summary affirmance is therefore appropriate. See Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir.2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

1 . We have jurisdiction pursuant to 28 U.S.C. § 1291. Although we have apparently not established, in this Circuit, a precise standard for review of Rule 36 motions, we need not do so today because appellant's request is infirm under any available standard.

2 . The appellant appears to admit that he seeks to correct his judgment because he believes that this will allow him to proceed anew via 28 U.S.C. § 2255 without having to satisfy the "second or successive” requirements of 28 U.S.C § 2255(h) and 28 U.S.C. § 2244(b)(3). But Magwood v. Patterson,U.S. -, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), upon which he relies, involved a re-sentencing leading to a revised state-court judgment. Id. at 2796. He points to no prec-edential opinion that suggests that the correction of a clerical error serves to either restart the limitations period or negate the existence of a prior attempt at collateral relief.