United States v. Diodayan Ledesma-Cuesta

Aug 27, 2012
12-2126
Versions:

Joan E. Burnes, Esq., Robert K. Reed, Esq., Office of United States Attorney, Philadelphia, PA, for United States of America.

Diodayan Ledesma-Cuesta, Otisville, NY, pro se.

OPINION

PER CURIAM.

Diodayan Ledesma-Cuesta appeals an order denying 1) his request for audita querela relief under 28 U.S.C. § 1651 and 2) his motion for correction of a clerical error in the criminal judgment pursuant to Fed.R.Crim.P. 36. Finding no substantial question to be presented by this appeal, we will summarily affirm.1 In a previous opinion, we explained to the appellant that attacks on his federal conviction and sentence must generally be pursued via 28 U.S.C. § 2255, which in his case would require seeking authorization from this Court; he has not done so, and nothing in the interim has altered the unavailability of the writ of audita querela. See United States v. Ledesma-Cuesta, 443 Fed.Appx. 685, 685-86 (3d Cir.2011). Furthermore, we agree with the District Court that there is no clear clerical error in the judgment, especially as the superseding indictment contains the same offense-conclusion date reflected in the judgment.2 Summary affirmance is therefore appropriate. See Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir.2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

Notes

1
We have jurisdiction pursuant to 28 U.S.C. § 1291. Although we have apparently not established, in this Circuit, a precise standard for review of Rule 36 motions, we need not do so today because appellant‘s request is infirm under any available standard.
2
The appellant appears to admit that he seeks to correct his judgment because he believes that this will allow him to proceed anew via 28 U.S.C. § 2255 without having to satisfy the “second or successive” requirements of 28 U.S.C § 2255(h) and 28 U.S.C. § 2244(b)(3). But Magwood v. Patterson, ___ U.S. ___, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), upon which he relies, involved a resentencing leading to a revised state-court judgment. Id. at 2796. He points to no precedential opinion that suggests that the correction of a clerical error serves to either restart the limitations period or negate the existence of a prior attempt at collateral relief.