Appeal from the United States District Court for the District of Oregon. D.C. No. CR 86-133-FR. Helen J. Frye, District Judge, Presiding.
Before: Thomas Tang and Charles Wiggins, Circuit Judges, and Thelton E. Henderson,*fn** District Judge. Per Curiam.
Defendant-appellant Enrique Fonseca-Martinez petitioned the district court, requesting that it exercise its power to issue the little-used common law writ of audita querela to vacate his 1987 conviction on a federal drug offense. The district court denied defendant's petition and Fonseca-Martinez appealed. For the reasons that follow, we affirm the judgment of the district court.
I. FACTS AND PROCEDURAL HISTORY
Appellant, a thirty-six year old citizen of Mexico and legal resident of the United States, pleaded guilty in 1987 to one count of possessing heroin with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Appellant was sentenced to three years imprisonment to be followed by a period of three years probation. Appellant served the prison sentence and was released. Subsequently, he was arrested again and convicted in Oregon state court on April 29, 1993 on a misdemeanor charge of receipt of stolen auto parts.
Because of his 1987 drug conviction, the U.S. Immigration and Naturalization Service (INS) entered an order of deportation against appellant. On May 27, 1993, appellant filed a petition for writ of audita querela in the federal district court in which he was convicted in 1987 of the drug charge, seeking to have the conviction vacated. Appellant did not contend that the conviction was improper in any respect. Rather, he sought to have it vacated solely on equitable grounds, arguing that, aside from that offense, he has been an upstanding resident and therefore deserved to be afforded a second chance by having the conviction expunged. The vacating of his federal conviction might enable appellant to avoid deportation since it was on the basis of that conviction that he was ordered deported under § 241(a)(11) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(11), and the conviction rendered him ineligible for relief from deportation under INA § 212(c), 8 U.S.C. § 1182(c).
The district court denied appellant's petition for writ of audita querela on the ground that, as a matter of law, the writ may not issue to vacate an otherwise valid criminal conviction solely on equitable grounds. This appeal followed.
The question of whether a writ of audita querela may issue to vacate a criminal conviction solely on equitable grounds is a question of law that is reviewed de novo by the court of appeals. United States v. Johnson, 962 F.2d 579, 581 (7th Cir. 1992).
A. BACKGROUND ON THE WRIT OF AUDITA
"'Audita querela' was a common law writ to afford relief to a judgment debtor against a judgment or execution because of some defense or discharge arising subsequent to the rendition of the judgment or the issue of the execution." 11 Wright & Miller, Federal Practice and Procedure § 2867, at 235 (1973). No statute expressly authorizes federal courts to grant relief in the form of a writ of audita querela. However, the Supreme Court has held that courts may issue writs lacking an express statutory basis pursuant to their general authority to issue common law writs under the All Writs Act, 28 U.S.C. § 1651(a).*fn1 United States v. Morgan, 346 U.S. 502, 98 L. Ed. 248, 74 S. Ct. 247 (1954) (writ of error coram nobis).
In the nineteenth century, federal courts regarded the writ as an available remedy, at least in civil cases. See, e.g., Butler v. Eaton, 141 U.S. 240, 243, 35 L. Ed. 713, 11 S. Ct. 985 (1891); Avery v. United States, 79 U.S. (12 Wall.) 304, 307, 20 L. Ed. 405 (1870); Humphreys v. Leggett, 50 U.S. 297, 314, 13 L. Ed. 145; 9 How. 297 (1850). Amendments to Fed. R. Civ. P. ("Rule") 60(b) that took effect in 1948 expressly abolished audita querela, along with several related common law writs including the writ of error coram nobis.*fn2 However, the Supreme Court subsequently ruled that, as regards coram nobis, the amendments to Rule 60(b) - a rule of civil procedure - abolished the writ only in civil cases and that the writ is still available to challenge criminal convictions. United States v. Morgan, 346 U.S. 502, 505 n.4, 98 L. Ed. 248, 74 S. Ct. 247 (1954). Lower federal courts have held that, similarly, the Rule 60(b) amendments did not abolish audita querela insofar ...