UNITED STATES of America, Appellee, v. Raymond A. COLLINS, Defendant-Appellant, 373 F. App'x 94

SUMMARY ORDER Appellant Raymond Collins, proceeding pro se, appeals from the district court’s order entered March 23, 2009, denying his petition for a writ of audita querela. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. We review de novo a district court’s denial of a writ of audita querela. United States v. Richter, 510 F.3d 103, 104 (2d Cir.2007) (per curiam). The writ of audita querela “remain[s] available in very limited circumstances with respect to criminal convictions.” United States v. LaPlante, 57 F.3d 252, 253 (2d Cir.1995).

It “is probably available where there is a legal, as contrasted with an equitable, objection to a conviction that has alisen subsequent to the conviction and that is not redressable pursuant to another post-conviction remedy.” Id.; see also United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001) (per curiam) (noting that the writ “survive[s] only to the extent that [it] fill[s] ‘gaps’ in the current systems of postconviction relief’).

And the writ also “might be deemed available if [its] existence were necessary to avoid serious questions as to the constitutional validity of both [28 U.S.C.] § 2255 and § 2244 — if, for example, an actually innocent prisoner were barred from making a previously unavailable claim under § 2241 as well as § 2255.” Triestman v. United States, 124 F.3d 361, 380 n. 24 (2d Cir.1997). This unusual form of relief is unavailable to Collins. First, another venue of judicial review was available. Appellant’s present claims based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v.

United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), were considered with respect to his 28 U.S.C. § 2255 motion and his subsequent motion for reconsideration, and we declined to grant a certificate of appeala-bility in his appeal from the denial of those motions. Accordingly, Appellant’s claims have received adequate consideration. Second, even if Appellant could show that adequate relief was unavailable, he would have to show that this is case in which “the failure to allow for collateral review would raise serious constitutional questions.” Tnestman, 124 F.3d at 377.

However, he does not argue that his conduct was rendered non-criminal by intervening statutory

interpretations. Cf. id. He contends that he is factually innocent of the conduct that resulted in his sentence of life imprisonment, but he continues to dispute only his intent to cause the death, not the fact that the death occurred — a contention that this Court expressly considered and rejected in denying his petition for rehearing on direct appeal. See United States v. Joyner, 313 F.3d 40, 45-46 (2d Cir.2002) (concluding that while the district court erred under Apprendi, the error did not “seriously affect the fairness, integrity, or public perception of the fairness of Collins’s trial”).

Similarly, while Appellant sought to challenge the jury charge on whether the building in question was connected to interstate commerce, he does not dispute that the building in question contained a bar that operated as a commercial business. Accordingly, Appellant has not raised “serious questions as to the constitutional validity” of the post-conviction structure, for which the narrow possibility of audita querela relief has been preserved. We have considered all of Appellant’s arguments and find them to be without merit. For the foregoing reasons, we AFFIRM the order of the district court.