UNITED STATES of America v. Carl JEFFERSON, Appellant, 332 F. App'x 719

OPINION PER CURIAM. Appellant Carl Jefferson appeals from an order of the District Court denying his “petition for writ of audita quei’ela and/or error coram nobis.” We will affirm. Pursuant to a plea agreement with the Government, Jefferson pleaded guilty in March of 2001 to the following three counts on which he was indicted: 1) possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(

a) and 841(b)(1)(D); 2) carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and 3) felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The District Court granted his motion for a downward departure, and Jefferson was sentenced to a 180 month aggregate term of imprisonment. We affirmed Jefferson’s conviction and sentence on direct appeal. See United States v. Jefferson, 57 Fed.Appx. 934 (3d Cir.2003). In February of 2004, Jefferson filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255.

The District Court denied the motion and denied reconsideration. Jefferson took no further action until four and one half years later when he filed the instant application purporting to seek relief pursuant to the All Writs Act, codified in 28 U.S.C. § 1651, and specifically through the writs of audita querela and coram nobis. In that application Jefferson urged the District Court to adopt the holding of the Second Circuit’s opinion in United States v.

Whitley, 529 F.3d 150 (2d Cir.), reh’g denied, 540 F.3d 87 (2d Cir.2008), in order to invalidate his sentence enhancement for using a firearm during the commission of a drug crime. The District Court denied the application without explanation, and Jefferson timely appealed. Common law writs such as audita querela and coram nobis can be used to the extent they “fill in the gaps” in post-conviction remedies. United States v. Valdez-Pacheco, 237 F.3d 1077, 1079 (9th Cir.2001). Here, Jefferson plainly attacks the consecutive ten-year prison term appended to his sentence by way of § 924(e)(1)(A).

His lack of success in a previous § 2255 motion, however, does not render § 2255 inadequate or ineffective to challenge that portion of his sentence. See Cradle v. United States ex rel. Miner, 290 F.3d 536, 539 (3d Cir.2002). Thus, Jefferson may not use the writ of audita querela to circumvent AEDPA’s gatekeeping requirements. See United States v. Holt, 417 F.3d 1172, 1175 (11th Cir.2005) (writ of audita querela unavailable where relief is cognizable under § 2255). And because Jefferson is still incarcerated, he cannot seek relief pursuant to the writ of coram nobis. See Obado v.

New Jersey, 328 F.3d 716, 718 (3d Cir.2003) (“coram nobis is not available when a petitioner is in custody and may not be used to avoid AEDPA’s gatekeeping requirements”). There being no substantial question presented by Jefferson’s appeal, we will summarily affirm the District Court’s order denying relief. See LAR 27.4; I.O.P. 10.6. .

In Whitley, a panel of the Second Circuit found that a consecutive ten-year minimum sentence for discharge of a firearm pursuant to 18 U.S.C. § 924(c)(l)(A)(iii), did not apply to a defendant who was also subject to a fifteen-year minimum sentence provided by ACCA’s “three strikes’’ rule under §§ 922(g)(1) and 924(

e) of that title. See 529 F.3d at 158. We express no opinion on the resultant circuit split at this time.