United States District Court, S.D. Georgia, Brunswick Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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.
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.)
Whether Hope can Proceed Pursuant to a Writ of Audita
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.
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.
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 ...