Free Reply to Response - District Court of Connecticut - Connecticut

[ _ . Case 3:00-cr-00069-AHN Document 231 Filed 12/27/2005 Page 1 of 3
} UNITED STATES DISTRICT COURT Esgn gxipm 1
DISTRICT OF CONNECTICUT U 1*-* -¤·1= =¤==·· 1** `
{ CLINTON COX, Crim. No. 3:00-CR-69(AHN)Zm5UpE2j {D u:2W
Q Petitioner: Civ. No. 3:O4—CV—1383(AHNU_QxNSTmCpCnUg, Q
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1 UNITED STATES OF AMERICA, 1
Respondent: E
REPLY TO GOVERNMENT'S RESPONSE TO PETITIONER'S APPLICATION
FOR WRIT OF AUDITA UERELA
Now comes, the Petitioner, Clinton Cox, pro-se (Hereinafter, 1
"Petitioner"U and hereby submits the instant reply to the Govern- 1
ment's Response to Petitioner's Application For Writ of Audita
Querela. In support thereof, it is stated: 1
The Government opposes the Petitioner's application for writ of ¥
audits querela claiming that: (1) "Audita Querela is not available 1
when the relief sought is available through another post-conviction 1
remedy" (Government's response, at page 3, citing United States I
V. Durrani, 294 F.Supp.2d 204, 217 (D. Conn. 2003); and (2) the a
Petitioner should not be allowed to escape the procedural restraints 5
imposed under 28 U.S.C. § 2244(b)(3) and § 2255. (Id. at page 3-4). 1
First, Petitioner contends that the Supreme Court's decision in
Booker significantly altered the sentencing regime that has existed
since the Guidelines became effective on November 1, 1987. The 1
Court's two-part decision consists of an opinion by Justice Stevens }
adjudicating the merits of the Sixth Amendment issue ("Substantive i
Opinion"U, and an opinion by Justice Breyer setting forth the remedy
("Remedy Opinion"U).
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i " " Case 3:00-cr-00069-AHN Document 231 Fi|ed12/27/2005 Page2of3
The Government overlooks that there was two errors in the .
Booker opinion. First, and most obviously, a sentencing judge would j
l violate the Sixth Amendment by making factual findings and mandatorily l
i enhancing a sentence above the range applicable to facts found by a T
j jury. j
[ Second, and less obviously, a sentencing judge would commit i
i procedural error by mandatorily applying the applicable Guidelines
i range that was based solely on facts found by a jury. The Court i
in its remedy opinion made clear that, even though the resulting i
sentence would not violate the Sixth Amendment, the judge would
have erred by mandatorily acting under the now-excised requirement j
of 18 U.S.C. § 3553(b)(1). j
That is, a sentence explicitly based upon a non-existent statu— j
tory provision, even if "reasonable" in length, constitutes error
(although possibly harmless error"Uor not plain error"U. Because
of the unlawful method by which it was selected. See, United
States v. Crosby, 397 F.3d 103, 114-15 (2nd Cir. 2005).
In sum, it is here where there is no available post-conviction
remedy to be heard on the unlawful method used in selecting Peti-
tioner's sentence, that must be addressed under a writ of Audita
Querela. Unlike, the first error the Sixth Amendment violation can
be addressed under a § 2255 motion.
In conclusion, Petitioner respectfully requests that his writ
of Audita Querela be granted.
Respectfully submitted,
CLINTON COX, PRO-SE LITIGANT
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CERTIFICATE OF SERV ICE ”
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Which is deemed tiled at the time it was delivered to prison authorities for forwarding to ‘ i
the court, Houston vs. Lack, lOl L.Ed.2d 245 (1988), upon the court and parties to I
- litigation and/or hisfher attorney(s) of record, by placing sarne in a sealed, postage 1
prepaid envelope addressed to: {
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and deposited sarne in the United States Postal Mail at the United States Penitentiary, ‘
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Signed on this Z2 ml day of Dec #~¢~L>·» l
` ` ‘ 2-0***5 I Respectfully SubI¤i‘LT¢‘»CL i
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_ Authorized bg; tha Act g5ii?yr1, 1995 ` I
as amended. to adrnln1stu¤atI1s(18 usb 4004). ‘ l
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