Federal Judiciary

United States v. Richter, Docket No. 06-1930-cr (2d Cir. Dec. 4, 2007) (found here)

In this post, I detailed Tobias v. United States, No. 3:06 CV 123 (DJS), 2006 WL 287197 (D. Conn. Feb. 7, 2006), in which the Court found that audita querela is not a ground for vacating a pre-Booker sentence.  Those who were sentenced before Booker are "not caught in a gap between remedies that may be filled by the use of a common law writ" because Booker is not retroactive.  Audita querela is a civil remedy available to vacate a civil or criminal judgment based on "some defense or discharge arising subsequent to the rendition of the judgment." 

In Richter, the defendant made essentially the same with regard to a pre-Booker argument.  And, although Second Circuit found Richter's petition meritless, it made a finding contrary to Tobias -- to wit, that "if the absence of any avenue of collateral attach would raise serious constitutional questions about the laws limiting [avenuues of relief[, then a writ of audita querela would lie."  As Doug Berman's Sentencing Law and Policy blog points out, this finding provides petitioners with a legal "hail mary" means for attacking a sentence.