United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION FOR A WRIT OF AUDITA
QUERELA PURSUANT TO 28 U.S.C. § 1651 TO VACATE AND
CORRECT RESTITUTION PORTION OF THIS COURT'S
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.
Court denies a defendant's motion for writ of audita
querela because the defendant failed to appeal the order
about which he is now complaining and a motion for writ of
audita querela, if the writ is available, is not a substitute
for direct appeal.
STATEMENT OF FACTS
February 8, 2019 and on December 6, 2018, the Court issued
orders detailing the facts underlying Mr. Stile's claims
about the restitution order and the Court refers to those
orders for a complete description of the events leading to
Mr. Stile's current motion. Order on Def.'s Mot.
for Ct. to Order Gov't/Probation Office to Dispense with
Sworn Aff. Submitted by Hanover Ins. that was to be Made in
Accordance with Title 18 U.S.C. § 3664(d) at 1-9
(ECF No. 720) (Aff. Order); Order on Def.'s
Mot. for the Production of Victim Affs. at 1-5 (ECF No.
706) (Production Order).
THE WRIT OF AUDITA QUERELA
writ of audita querela, introduced during the reign of Edward
III, is sometimes available to reopen a judgment when an
important matter concerning a defendant's case has arisen
since the entry of judgment.” Trenkler v. United
States, 536 F.3d 85, 90 n.2 (1st Cir. 2008). In 1991,
the First Circuit described a writ of audita querela, part of
the All Writs Act, 28 U.S.C. § 1651, as “‘a
common law writ constituting the initial process in an action
brought by a judgment defendant to obtain relief against the
consequences of the judgment on account of some matter of
defense or discharge arising since its rendition and which
could not be taken advantage of
otherwise.'” United States v. Holder, 936 F.2d
1, 2 (1st Cir. 1991) (quoting Black's Law Dictionary 120
(5th ed. 1979)). In Holder, the First Circuit
[I]f available at all [in criminal proceedings], the writ of
audita querela can only be available where there is a
legal objection to a conviction, which has arisen
subsequent to that conviction, and which is not redressable
pursuant to another post-conviction remedy.
Id. at 5 (emphasis in original). Put differently,
to obtain relief under audita querela, a defendant must point
to something “occurring since his conviction that would
render his conviction illegal.” Id.
Bartelho v. United States, No. 15-1988, 2016 U.S.
App. LEXIS 23945, 2016 WL 9584199 (1st Cir. Dec. 8, 2016),
the First Circuit acknowledged that 28 U.S.C. § 2255
could not be used to obtain relief from a restitution order
in a criminal judgment because a defendant “is not
claiming the right to be released from custody as required by
§ 2255.” Id. at *1 (citing Smullen v.
United States, 94 F.3d 20, 25-26 (1st Cir. 1996)). The
First Circuit assumed without deciding that the defendant in
Bartelho “could seek relief from the original
restitution order under the writ of audita querela or some
other common law writ.” 2016 U.S. App. LEXIS 23945, at
*2, 2016 WL 9584199, at *1. Following the First Circuit's
lead, the Court assumes that the writ of audita querela may
be available to Mr. Stile to challenge the restitution order,
if he meets the requirements of the writ.
assume that the writ could be available in some cases,
however, does not mean that it is available in Mr.
Stile's case. It is not. Although the First Circuit has
stated that the writ of audita querela may be available to
“reopen a judgment when an important matter concerning
a defendant's case has arisen since entry of the
judgment, ” Trenkler, 536 F.3d at 90 n.2, the
Holder Court noted that the writ of audita querela
“does not and cannot, under any stretch of imagination,
provide a purely equitable basis for relief independent of
any legal defect in the underlying judgment.”
Holder, 936 F.3d at 3 (citation omitted).
THE PARTIES' POSITIONS
James Stile's Motion
motion, Mr. Stile “concedes that the Judgment entered
by the district court on May 29, 2015 was correct based on
the information presented to all parties including the
Court.” Def.'s Mot. for a Writ of Audita
Querela Pursuant to Title 28 U.S.C. § 1651 to Vacate and
Correct Restitution Portion of this Ct.'s J. at 2
(ECF No. 713). Mr. Stile says that the “initial
judgment allowed for the [pharmacist] to realize a
‘windfall' which is not the legislative intent of
§ 3664 or § 3663 of the restitution
statutes.” Id. at 3. Mr. Stile acknowledges
that the amended judgment dated November 28, 2017
“corrected the ‘windfall' matter as concerns
[the pharmacist], but brought forward the facts that the
Defendant was denied due process creating an injustice to the
Defendant.” Id. Mr. Stile claims that there is
a “very good possibility that there was a
‘windfall' to Hanover Insurance Company by virtue
of the fact that insurance companies routinely purchase
‘re-insurance' policies and subrogate their losses,
here, the district court entered the judgment without any
proof of loss from Hanover Insurance Company.”
Id. Finally, Mr. Stile returns to his claim that
Federal Rule 32 and 18 U.S.C. § 3663 were violated
before and during his sentencing hearing. Id. at 4.
He asks that the Court vacate the restitution order as it
relates to Hanover Insurance Company. Id.