Walters v. United States of America, No. 2:2009cv00589 - Document 669 (S.D.W. Va. 2009)

Court Description: MEMORANDUM OPINION AND ORDER; adopting 667 Proposed Findings and Recommendation; denying petitioner's 663 Petition for a Writ of Audita Querela; directing that this civil action be dismissed and stricken from the docket. Signed by Judge Joseph R. Goodwin on 8/21/2009. (cc: attys; any unrepresented party, Magistrate Judge) (tmr)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION ROHAN ALEXANDER WALTERS, Petitioner, v. CIVIL ACTION NO. 2:09-cv-00589 (Criminal No. 2:97-cr-00157-2) UNITED STATES OF AMERICA, Respondent. MEMORANDUM OPINION AND ORDER Pending is the petitioner Rohan Alexander Walters request for a Writ of Audita Querela pursuant to 28 U.S.C. § 1651 [Docket 663]. On June 23, 2009, the Honorable Mary E. Stanley, United States Magistrate Judge, entered her proposed findings and recommendation ( PF&R ) pursuant to 28 U.S.C. § 636. The magistrate judge recommends that the petition be dismissed with prejudice for failure to state a claim upon relief can be granted. On July 9, 2009, petitioner objected. The Magistrate Judge concluded that the petition be denied inasmuch as the requested Writ is not a suitable device for challenging a conviction or sentence if the grounds asserted therein could have been pursued under 28 U.S.C. § 2255. The Magistrate Judge is correct. As stated by our court of appeals in a recent unpublished decision, "because § 2255 exists as a vehicle for collaterally attacking a conviction or sentence, the use of an extraordinary writ [of audita querela] for the same purpose is inappropriate." United States v. Aguilar , No. 04-8015, 05-7099, 2006 WL 228699, slip op. at 1(4th Cir. Jan 30, 2006) 164 Fed.Appx. 384, 2006 WL 228699, 1 (C.A.4 (N.C. (C.A.4 (N.C.),2006). Petitioner s objection is thus not meritorious. Accordingly, I ADOPT and INCORPORATE the Magistrate Judge s PF&R herein and ORDER that the petition for a Writ of Audita Querela be DENIED. I further ORDER that this civil action be DISMISSED and stricken from the docket. The court DIRECTS the Clerk to send a copy of this written opinion and order to the petitioner, all counsel of record and the United States Magistrate Judge. ENTER: August 21, 2009

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