United States v. Francis Cox

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2021
• Docket: 19-30254
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 8 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30254

Plaintiff-Appellee, D.C. No. 3:11-cr-00022-RJB-1 v.

FRANCIS SCHAEFFER COX, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Robert J. Bryan, District Judge, Presiding

Argued and Submitted June 17, 2021 Anchorage, Alaska

Before: RAWLINSON, CHRISTEN, and R. NELSON, Circuit Judges.

Appellant Francis Schaeffer Cox (Cox) appeals the district court’s denial of

his motion for a writ of audita querela. Cox was convicted of, among other things,

conspiracy to murder a federal officer in violation of 18 U.S.C. §§ 1117 and 1114

and solicitation to murder a federal officer in violation of 18 U.S.C. §§ 373 and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1114. On appeal, a previous panel affirmed the conspiracy conviction, but

reversed the solicitation conviction. See United States v. Cox, 705 F. App’x 573,

575 (9th Cir. 2017). Cox maintains that the panel’s reversal of the solicitation

charge undermined the “jurisdictional foundation” of the conspiracy charge.

1. Reviewing de novo, we affirm the denial of Cox’s motion seeking a

writ of audita querela. See United States v. Gamboa, 608 F.3d 492, 494 (9th Cir.

2010). Cox is precluded from seeking the writ because he may pursue the same

relief by way of a habeas petition. See id. at 494–95. Cox concedes that he may

file a habeas petition in the future, and provides no authority to support the

preemptive issuance of a writ of audita querela prior to filing a habeas petition.

2. Cox reiterates his insufficiency-of-the-evidence argument, but the

parties agree that we are bound by the prior panel’s decision rejecting this claim.

For the reasons set forth in the prior disposition, we again reject Cox’s

insufficiency argument. See Cox, 705 F. App’x at 576.

AFFIRMED.