Second Circuit confirms writ of audita querela as a viable “hail mary” motion

A tiny per curiam opinion today from the Second Circuit in US v. Richter, No. 06-1930 (2d Cir. Dec. 4, 2007) (available here), has an important sentence that could be a very big deal for criminal defendants needing a special avenue to get into the courthouse door.  In Richter, the panel denies a petitioner’s writ of audita querela, but has this important line along the way: “if the absence of any avenue of collateral attack would raise serious constitutional questions about the laws limiting those avenues, then a writ of audita querela would lie.”

I think this could mean that if you have a really strong substantive claim for attacking a conviction and sentence, but all the courthouse doors are otherwise closed, a writ of audita querela is the answer.  Of course, as Baltimore Raven fans know well, even when a last-minute hail mary pass connects, victory is not assured.  Still, the Second Circuit’s acknowledgement that a writ of audita querela is sometimes available seems of great import.