United States v. Richter, No. 06-1930-cr (2d Cir. December 4, 2007) (per curiam)
Richter was sentenced in 1992 and did not appeal. In 2006, he petitioned pro se for a writ of audita querela to make a collateral Booker challenge to his sentence. The court rejected the claim, because Booker does not apply retroactively on collateral review.
This opinion is interesting, however, because the court identifies a situation when this obscure writ would lie. Most past cases have noted only the writ is “probably available,” or “might be deemed available,” or “might be available” in certain circumstances. Here, the court makes clear, without apparent qualification, that the writ would lie “if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues.” Now we know.
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