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Hope v. United States

United States District Court, S.D. Georgia, Brunswick Division

October 20, 2017




         Petitioner Darryl Hope (“Hope”), who is currently incarcerated at the Federal Correctional Institution in Jesup, Georgia (“FCI Jesup”), filed a Petition for Writ of Audita Querela pursuant to 28 U.S.C. § 1651, as supplemented. (Docs. 1, 4, 5.) Hope also filed a Motion for Issuance of Writ, (doc. 4), and a Motion for Summary Judgment (doc. 5). For the reasons which follow, I RECOMMEND that the Court DISMISS Hope's Petition and DISMISS as moot Hope's Motion for Issuance of Writ and Motion for Summary Judgment. I also RECOMMEND that the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Hope in forma pauperis status on appeal.


         On June 10, 1991, a jury in the Southern District of Florida found Hope guilty of conspiring to distribute cocaine and using a firearm during a drug trafficking crime. Docket Sheet, United States v. Hope, 0:90-cr-06108 (S.D. Fla. June 10, 1991), ECF No. 225, p. 6. Hope was sentenced to life plus five (5) years of imprisonment and ordered to pay an assessment of $100.00. (Doc. 1, p. 8); see also Docket Sheet, United States v. Hope, 0:90-cr-06108 (S.D. Fla. Aug. 30, 1991), ECF No. 225, p. 7.

         Following his sentence, Hope has apparently filled much of his days in prison drafting legal pleadings. A search of the United States Court's database reveals that he has filed approximately forty-three (43) new legal actions or appeals over the last twenty-six (26) years. The Southern District of Florida has stated that it is “well aware of movant's abusive and litigious nature. From the time the underlying criminal conviction became final, movant has instituted numerous motions and/or petitions attacking the constitutionality of his conviction . . . .” Order, Hope v. United States, 0:12-cv-61686 (S.D. Fla. Apr. 11, 2013), ECF No. 29, p. 2.

         Apparently having exhausted his creativity for coming up with ways to attack the sentence he actually received, Hope now brings the instant Petition to seek relief from a monetary judgment that it appears he did not receive. In his Petition, Hope contends that the Southern District of Florida entered judgment against him for costs pursuant to 28 U.S.C. § 1918. Hope maintains these costs include:

Marshal fees which the court may tax as costs for serving a writ of attachment and execution, the keeping of the attached person, actual expenses incurred, such as storage, watchmen's or keepers' fees, insurance, and an hourly rate, including overtime, guarding, moving, etc., pursuant to 28 U.S.C. § 1921, and costs to the Government for any imprisonment, probation, supervised release or community confinement, which the Administrative Office of the U.S. Courts dated May 11, 1989, suggests that a monthly cost of $1, 210.05 be used for imprisonment, a monthly cost of $91.66 be used for supervision and a monthly cost of $938.44 be used for community confinement totaling $725, 808.60 in Petitioner's Criminal Case to date.

         (Doc. 1, p. 1.) However, the only documentation Hope provides for this assertion is a page from his Presentence Investigation Report. (Id. at p. 10.) On that page, it appears that the United States Probation Office advised the sentencing judge to impose a monetary amount to cover the costs of imprisonment, probation, supervised release, or community confinement “subject to the defendant's ability to pay.” (Id.) The Unites States Probation Office then concluded Hope had no financial assets and that he had no ability to pay a fine. Additionally, Hope's sentencing documents do not indicate that the Southern District of Florida imposed any fine or monetary penalty on Defendant other than the $100.00 mandatory assessment. (Doc. 1, p. 8); see also Docket Sheet, United States v. Hope, 0:90-cr-06108 (S.D. Fla. Aug. 30, 1991), ECF No. 225, p. 7.


         In his Petition, Hope avers that he has a dispute with the Government regarding the amount he owes for “attachment, costs, and executions.” (Doc. 1, p. 3.) He states that he has tendered a $5.00 money order to the Government with the condition that the Government could only accept the money order as full satisfaction of its claim against him. (Id. at p. 12.) He also attaches a receipt, which he contends is from the Southern District of Florida and shows that the court accepted his money order as full satisfaction of his criminal monetary penalties. (Id. at p. 13.) Thus, Hope maintains that he is entitled to relief under the theories of accord and satisfaction, discharge and release, and breach of contract. (Id. at pp. 3-5.)

         I. Whether Hope can Proceed Pursuant to a Writ of Audita Querela

         Pretermitting the question of whether Hope even owes any fines or any other criminal monetary penalties, he cannot seek relief from those penalties in this Court through a writ of audita querla. The writ of audita querela, “Latin for ‘the complaint having been heard, ' was an ancient writ used to attack the enforcement of a judgment after it was rendered.” United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005). The writ was typically employed by a debtor in a civil case to stop a judgment's execution “because of some defense or discharge arising subsequent to the rendition of the judgment.” Id.Audita querela is distinguished from coram nobis in that coram nobis attacks the judgment itself, whereas audita querela is directed against the enforcement, or further enforcement, of a judgment which, when rendered, was just and unimpeachable.” United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010). “A writ of audita querela is now available only to attack a criminal judgment.” Orlansky v. United States, 627 Fed.Appx. 915 (11th Cir. 2015) (citing Fed.R.Civ.P. 60(e)).

         However, the Eleventh Circuit Court of Appeals has held that audita querela cannot be used to reduce a restitution judgment when statutory avenues exist to achieve that reduction. Id. at 915-16. In Orlansky, the Court explained, though federal courts retain the authority to issue all writs, that residual authority does not apply if a statute addresses the issue at hand. Id. at 915 (citing Pa. Bureau of Corr. v. United States Marshals Serv., 474 U.S. 34, 43 (1985)). The Court further explained that 18 U.S.C. § 3664 provided the petitioner an avenue to obtain the relief he sought through audita querela. Id. at 916. Accordingly, the Eleventh Circuit affirmed the district court's dismissal of the petition. Id. Moreover, the Eleventh Circuit has indicated that a federal prisoner is not entitled to a writ of audita querela when relief is cognizable under 28 U.S.C. § 2255. Holt, 417 F.3d at 1173; see also Harris v. United States, No. 4:16CV132-RH/CAS, 2016 WL 3039654, at *12 (N.D. Fla. Apr. 8, 2016), report and recommendation adopted, 2016 WL 3039881 (N.D. Fla. May 29, 2016). Likewise, in this case, it appears that Hope's avenue for relief, if any, rests with the sentencing court.

         For instance, to the extent that Hope seeks to amend or correct a restitution portion of his sentence, through 18 U.S.C. § 3664(o), Congress has provided mechanisms by which the sentencing court can correct, amend, and modify an order of restitution. To the extent that Hope argues any monetary penalty has become infirm due to circumstances after the entry of the order, some Circuits have recognized, “with some reservation, that the writ of audita querela might also survive in criminal adjudications, if there is a gap for it to fill” in the federal post-conviction remedial scheme. United States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010) (citing United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993)); United States v. Reyes, 945 F.2d 862, 865 & n.5 (5th Cir. 1991); United States v. Holder, 936 F.2d 1 (1st Cir. 1991); United States v. Ayala, 894 F.2d 425, 429 (D.C. Cir. 1990); United States v. Kimberlin, 675 F.2d 866 (7th Cir. 1982). However, it is not clear if that authority would provide Hope with the ability to bring an independent cause of action in this Court, as opposed to petitioning the sentencing court. Ordinarily, a sentencing court retains jurisdiction over its restitution order. United States v. Joseph, 914 F.2d 780 (6th Cir. 1990); United States v. Smith, No. CR01-0057, 2010 WL 55484, at *3 (N.D. Iowa Jan. 6, 2010); United States v. Watson-El, No. 04-00181-01-CR-W-NKL, 2009 WL 1765007, at *2 (W.D. Mo. June 22, 2009); United States v. Holland, 380 F.Supp.2d 1264, 1269 (N.D. Ala. 2005). As the Seventh Circuit Court of Appeals explained, “the district court must make ...

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