Marty Wright, No. 10-2350 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2350 In re: MARTY LORENZO WRIGHT, Petitioner. On Petition for Writ of Audita Querela. TEM-1) Submitted: June 30, 2011 (4:95-cr-00039-TEM- Decided: July 5, 2011 Before WILKINSON, DUNCAN, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Marty Lorenzo Wright, Petitioner Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Marty Lorenzo Wright has filed a petition for a writ of audita querela in this court, pursuant to the All Writs Act, 28 U.S.C. § 1651(a) (2006), seeking to challenge the district court s prior dismissal of his Fed. R. Civ. P. 60(b) motion in his underlying 28 U.S.C.A. § 2255 (West Supp. 2010) motion. A writ of audita querela is not available to a petitioner when other avenues of relief are available, such as a motion to United States v. Torres, 282 F.3d 1241, vacate under § 2255. 1245 (10th Cir. 2002); United States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992) (explaining that audita querela may not be invoked by a defendant challenging the legality of his sentence who could otherwise raise that challenge under § 2255). The fact that Wright cannot proceed under § 2255 unless he obtains authorization from this court to file a successive motion does not alter this conclusion. F.3d 1077, 1080 (9th United States v. Valdez-Pacheco, 237 Cir. 2000) ( We agree with our sister circuits . . . that a federal prisoner may not challenge a conviction or a sentence by way of a petition for a writ of audita querela when that challenge is cognizable under § 2255. ). Accordingly, we deny Wright s pending motion for an evidentiary querela. hearing and his petition for a writ of audita We dispense with oral argument because the facts and 2 legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. PETITION DENIED 3

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