Joe Patron v. Rick Thaler, Director, No. 09-10452 (5th Cir. 2010)
Annotate this Case
Download PDF
Case: 09-10452 Document: 00511005351 Page: 1 Date Filed: 01/15/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-10452 Summary Calendar January 15, 2010 Charles R. Fulbruge III Clerk JOE ROBERT PATRON, Petitioner-Appellant v. RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISON, Respondent-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 4:09-CV-82 Before KING, STEWART, and HAYNES, Circuit Judges. PER CURIAM:* Joe Robert Patron, Texas prisoner # 1176158, seeks a certificate of appealability (COA) from the dismissal of his petition for writ of audita querela, in which he challenged his conviction and sentence for aggravated sexual assault of a child. A COA is not required for Patron to appeal. See 28 U.S.C. § 2253(c). We may affirm the district court s judgment on any basis supported by the record. See Scott v. Johnson, 227 F.3d 260, 262 (5th Cir. 2000) (denial of § 2255 * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. Case: 09-10452 Document: 00511005351 Page: 2 No. 09-10452 Date Filed: 01/15/2010 motion). The district court correctly dismissed Patron s petition for writ of audita querela because redress was available to Patron under 28 U.S.C. § 2254. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993); Tolliver v. Dobre, 211 F.3d 876, 878 (5th Cir. 2000); see also Felker v. Turpin, 518 U.S. 651, 662 (1996). It is irrelevant that Patron can no longer meet the standard for bringing a timely § 2254 petition. Cf. Tolliver, 211 F.3d at 878 (holding that fact that federal prisoner filed unsuccessful 28 U.S.C. § 2255 motion or that federal prisoner cannot meet requirements for filing successive § 2255 motion does not render § 2255 remedy unavailable). Accordingly, Patron s motion for a COA is DENIED as unnecessary and the judgment of the district court is AFFIRMED. 2
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
