United States v. Mark A. Mayne

419 F. App'x 953

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 29, 2011
• Docket: 10-14326
• Status: Unpublished

Opinion

PER CURIAM:

Mark A. Mayne, a pro se federal prisoner, appeals the denial of his petition for a writ of audita querela, filed pursuant to the All Writs Act, 28 U.S.C. § 1651. After review, we affirm. 1

Mayne’s petition collaterally attacks his sentence in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Because the relief Mayne seeks — the vacatur of his original sentence on constitutional grounds — is cognizable under 28 U.S.C. § 2255, the district court correctly denied his petition for a writ of audita querela. See United States v. Holt, 417 F.3d 1172, 1173-75 (11th Cir.2005).

Additionally, Mayne previously filed a § 2255 motion, which was denied, and Mayne did not obtain authorization from this Court to file a second § 2255 motion. Thus, the district court lacked jurisdiction to review Mayne’s pro se petition as a second or successive § 2255 motion. See id. at 1175. Further, we would not have authorized a second or successive § 2255 motion because the constitutional rule announced in Booker does not apply retroactively on collateral review. See In re Anderson, 396 F.3d 1336, 1339-40 (11th Cir.2005).

AFFIRMED.

1 . “We review de novo the question of whether a prisoner may challenge his sentence by filing a motion for a writ of audita querela." United States v. Holt, 417 F.3d 1172, 1174 (11th Cir.2005).