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  • In Re: Lawrence Webb, 4th Cir. (2012)

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    The United States Court of Appeals for the Fourth Circuit denied Lawrence McArthur Webb's petition for a writ of audita querela and mandamus seeking to challenge his sentence enhancement. The court determined that such extraordinary writs are not available when other relief, such as a motion under 28 U.S.C. § 2255, can be sought. While Webb cannot file a successive § 2255 motion without authorization, that does not permit him to circumvent the § 2255 framework using a writ. Therefore, the court denied Webb's petition.

    Original Description:

    Filed: 2012-12-26 Precedential Status: Non-Precedential Docket: 12-1995

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    The United States Court of Appeals for the Fourth Circuit denied Lawrence McArthur Webb's petition for a writ of audita querela and mandamus seeking to challenge his sentence enhancement. The court determined that such extraordinary writs are not available when other relief, such as a motion under 28 U.S.C. § 2255, can be sought. While Webb cannot file a successive § 2255 motion without authorization, that does not permit him to circumvent the § 2255 framework using a writ. Therefore, the court denied Webb's petition.

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    9 views3 pages

    In Re: Lawrence Webb, 4th Cir. (2012)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit denied Lawrence McArthur Webb's petition for a writ of audita querela and mandamus seeking to challenge his sentence enhancement. The court determined that such extraordinary writs are not available when other relief, such as a motion under 28 U.S.C. § 2255, can be sought. While Webb cannot file a successive § 2255 motion without authorization, that does not permit him to circumvent the § 2255 framework using a writ. Therefore, the court denied Webb's petition.

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    of 3

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 12-1995

    In re: LAWRENCE MCARTHUR WEBB, a/k/a Ted Paige,


    Petitioner.

    On Petition for Writ of Mandamus.


    (7:06-cr-00079-GEC-RSB-2)

    Submitted:

    December 20, 2012

    Decided:

    December 26, 2012

    Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior


    Circuit Judge.

    Petition denied by unpublished per curiam opinion.

    Lawrence McArthur Webb, Petitioner Pro Se.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Lawrence

    McArthur

    Webb

    has

    filed

    in

    this

    court

    petition for a writ of audita querela and mandamus, pursuant to


    the

    All

    Writs

    challenge

    the

    Act,

    28

    U.S.C.

    statutory

    1651(a)

    enhancement

    (2006),

    to

    his

    seeking

    sentence

    to
    for

    conspiracy to distribute cocaine and cocaine base and related


    offenses.

    A writ of audita querela or mandamus is not available

    to a petitioner when other avenues of relief are available, such


    United

    as a motion under 28 U.S.C.A. 2255 (West Supp. 2012).

    States v. Torres, 282 F.3d 1241, 1245 (10th Cir. 2002); United
    States v. Johnson, 962 F.2d 579, 582 (7th Cir. 1992) (explaining
    that

    writ

    [of

    audita

    querela]

    could

    not

    be

    invoked

    by

    defendant challenging the legality of his sentence who could


    otherwise raise that challenge under . . . 2255); see In re
    First Fed. Sav. & Loan Assn, 860 F.2d 135, 138 (4th Cir. 1988)
    (setting
    invoked).

    forth

    circumstances

    under

    which

    mandamus

    can

    be

    The fact that Webb cannot proceed under 2255 unless

    he obtains authorization from this court to file a successive


    motion does not alter this conclusion.

    United States v. Valdez

    Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001) (We agree with our
    sister circuits . . . that a federal prisoner may not challenge
    a

    conviction

    or

    sentence

    by

    way

    of

    petition

    for

    writ

    of audita querela when that challenge is cognizable under 2255


    . . . .).
    2

    Accordingly,

    although

    we

    grant

    Webbs

    motion

    to

    proceed in forma pauperis, we deny his petition for a writ of


    audita querela and mandamus.

    We dispense with oral argument

    because the facts and legal contentions are adequately presented


    in the materials before this court and argument would not aid
    the decisional process.

    PETITION DENIED

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