Petition for Writ of Certiorari — Terrance Carvell Guinn, Petitioner v. United States

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APPENDIX A

United States Court of Appeals

for the Fifth Circuit

No. 21-60550

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

Versus

TERRANCE CARVELL GUINN,

Defendant-Appealant

Appeal from the United States District Court for the

Southern District of Mississippi

USDC No. 5:99-CR-8-l

Before DAVIS, WILLETT, and OLDHAM,

Circuit Judges.

PER CURIAM: *

Terrance Carvell Guinn pleaded guilty in 1999

to one count of possession of a firearm by a convicted

felon in violation of 18 U.S.C. § 922(g)(1). The

predicate felony was Guinn's 1997 Louisiana

* Pursuant to 5TH CIRCUIT RULE 47.5, the court has

determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in

5TH CIRCUIT RULE 47.5.4.

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conviction for possession of a controlled substance

with intent to distribute. As part of his plea

agreement, Guinn waived the right to contest the

conviction or sentence In 2020, after Guinn had fully

discharged his federal sentence, the State of

Louisiana expunged his 1997 drug conviction. Guinn

initiated this postconviction proceeding shortly

thereafter, seeking a writ of audita querela vacating

his federal conviction based on the expungement of

the predicate felony. He wanted his § 922(g)(1)

conviction set aside so that he could obtain

occupational and professional licenses through the

Securities and Exchange Commission.

The district court denied relief, holding that

the collateral review waiver incorporated into

Guinn's plea agreement precluded his challenge and

that, even absent a waiver, Guinn would not be

entitled to relief on the merits because the

expungement did not invalidate his federal felon-inpossession conviction. Guinn then filed a motion for

reconsideration under FED. R. Civ. P. 59(e),

repeating his earlier arguments for postconviction

relief. The district court denied the motion.

Guinn appeals the district court's denials of

his petition for a writ of audita querela and motion

for reconsideration. The government, for its part,

moves to dismiss the appeal or, alternatively, for

summary affirmance. For the reasons explained

below, we hold that this action is barred by Guinn's

collateral-review waiver and DISMISS the appeal.

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Guinn seeks postconviction relief in the form

of a writ of audita querela. This common-law

procedural device is used to challenge an initially

valid judgment that has become invalid due to a

legal defect that arose after its rendition. See United

States v. Miller, 599 F.3d 484, 487 (5th Cir. 2010).

While the writ of audita querela has been expressly

abolished in civil cases, we have "acknowledged,

with some reservation, that the writ... might...

survive in criminal adjudications, if there is a gap for

it to fill." Id. at 488.

We need not decide whether the writ is

generally available in criminal cases, however,

because we conclude that Guinn's waiver of his right

to seek postconviction relief bars his present action

seeking audita querela relief. Guinn, as part of his

plea agreement, "expressly waive[d] the right to

contest the conviction and/or sentence or the manner

in which the conviction was imposed in any post­

conviction proceeding, including but not limited to a

motion brought under § 2255, Title 28, United States

Code ...."A collateral-review waiver of this type is

enforceable if it "was knowing and voluntary," and

"applies to the circumstances at hand, based on the

plain language of the agreement." United States v.

Barnes, 953 F.3d 383, 386 (5th Cir. 2020) (quoting

United States v. Kelly, 915 F.3d 344,348 (5th Cir.

2019)).

Guinn does not deny that he knowingly and

voluntarily waived his right to seek postconviction

relief. Instead, he argues that the waiver does not

bar this postconviction proceeding. We disagree.

4a

Guinn seeks a writ of audita querela setting aside

his 1999 conviction. In doing so, he is _inarguably

attempting to ('contest [that] conviction ... in a post­

conviction proceeding" -which, by the plain language

of his plea agreement, he surrendered the right to

do. See Dong Qj Ming v. United States, 2013 WL)

2397674, at *5 (S.D.N.Y. May 31, 2013) (collateralreview waiver barred challenge to conviction via writ

of audita querela).

Indeed, we held in an earlier case that

Guinn's plea agreement barred an attempt to

challenge his conviction via the writ of coram nobis.

See United States v. Guinn, 310 F. App'x 693, 694

(5th Cir. 2009). We see no reason why the same

waiver would not also bar a similar challenge by way

of a writ of audita querela. Moreover, Guinn's waiver

is enforceable even though he seeks to set aside his

conviction based on a legal development

(expungement of his predicate conviction) that

occurred after he waived his right to seek

postconviction relief. See United States v. Burns, 433

F.3d 442, 446-51 (5th Cir. 2005).

Finally, Guinn argues that even if his

collateral-review waiver is valid and bars his

petition for a writ of audita querela, we should

decline to enforce the waiver because doing so would

result in a miscarriage of justice. While some circuits

have recognized a miscarriage-of-justice exception to

the enforceability of collateral-review waivers, see,

e.g., United States v. Cudjoe, 634 F.3d 1163, 1167

(10th Cir. 2011), this court has thus far "declined

explicitly either to adopt or to reject it," Barnes, 953

5a

F.3d at 389. We need not determine the validity of

such an exception here because Guinn's briefing of

the issue, which consists of some conclusory

statements that enforcing the waiver would result in

a miscarriage of justice, is plainly inadequate, in

that he does not "explain the proper scope of th[e]

exception, ... cite any cases purporting to do so, or ...

detail how and why it should apply to his case."id

"By only briefly alluding to that theory," Guinn has

forfeited "any contention that [the miscarriage-ofjustice] exception applies." Id.

Because Guinn waived his right to bring this

postconviction challenge, this appeal is DISMISSED.

February 4, 2022

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APPENDIX B

United States District Court

Southern District of Mississippi

Western Division

USA

Plaintiff.

v.

Terrance Guinn

Defendant.

Criminal Action No 5:99-cr-8-l

ORDER

This Matter is before the Court on Terrance

Guinn’s Motion for Writ of Audita Querla [ECF No.

66] and Motion for Notice of Hearing [ECF No. 67].

After carefully considering the motions, the

applicable law, and being fully advised in the

premises, the Court finds as follow:

Background

Guinn (“Defendant”) was originally sentenced

by this Court on August 16, 1999, after pleading

guilty to a violation of 18 U.S.C § 922(g)(1),

Possession of a Firearm by a Convicted Felon. He

was sentenced to thirty (30) months imprisonment,

to be followed by a two (2) year term of supervised

release. Guinn again appeared before this Court

August 3, 2004 and pleaded guilty to the violations

of his supervised release alleged in a Petition for

Summons filed November 21, 2003. He was

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sentenced to time served (196 days) with 12-month

term of reimposed supervised release. He again

appeared before the Court on August 8, 2005, for a

revocation hearing based on allegations that he had

violated his conditions of supervised release as

stipulated in a Petition for Warrant filed on June 28,

2005.

On August 19, 2005 the Court found the

Defendant not guilty of the alleged violations and,

since Guinn original date of termination of

supervised release was August 2, 2005, ordered the

Defendant immediately terminated from supervise

release.

On July 24, 2007, Defendant filed for Writ of

Error Coram Nobis [ECF No. 55]; two days later he

filed a Motion to Amend Motion for Writ of Error of

Coram Nobis [ECF No. 57]. This Court denied the

amended motion. [ECF No. 59]. Inasmuch as Guinn

had waived his right to pursue post-conviction

challenges to his conviction because he pleaded

guilty, the Court found that his motion was

untimely, and that he failed to show 18 U.S.C. §

922(g)(1) is unconstitutionally vague. Id. On appeal,

the Fifth Circuit agreed that Guinn waived his right

to pursue post-conviction relief. [ECF No. 64]. The

Fifth Circuit further found that Guinn had

presented a frivolous issue and dismissed the appeal.

Id.

The State of Louisiana recently expunged

Guinn’s 1997 conviction of possession of marijuana

with the intent to distribute. [ECF No. 66]. It was

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this 1997 conviction that led to Guinn’s status as a

felon. Id._Guinn now seeks a writ of audita querla

and request the Court to vacate or set aside his

conviction pursuant to the All-Writs Act, 28 U.S.C. §

16511.

Analysis

A writ of audita querela is a common law writ

which constitutes the initial process in an action

brought by a judgment defendant on the ground that

some defense or discharge has arisen since its

rendition. United States u. Reyes, 945 F. 2d 862, 863

n.l (5th Cir. 1991). “Audita querela is directed

against the enforcement, or further enforcement, of a

judgment which, when rendered, was just and

unimpeachable.” United States v. Miller,

599 F. 3d 484, 487 (5th Cir. 2010) citing 7A C.J.S.

Audita Querela § 4 (2004).

Guinn seeks to have his 1999 conviction vacated

because the state of Louisiana recently expunged his

1997 conviction that established his status as a

felon. See_La. Cr. C PR Art. 971, et seq. When

Defendant pleaded guilty, he waived his right to

pursue post-conviction challenges to his conviction,

he is procedurally barred from

1 (a) The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of

their respective jurisdiction and agreeable to the usages and

principles of law.

(b) An alternative writ rule nisi may be issue by justice or

judge of a Court which has jurisdiction.

28 U.S.C. § 1651

9a

pursuing the instant petition for writ of audita

querela. See Mata-Soto v. U.S., 558 Fed. Appx 844

(10th Cir. 2014); U.S. v. Masilotti, 965 F. Supp. 2d

1380 (S.D. Fla. 2013), aff d, 565 Fed. Appx. 837 (11th

Cir. 2014), cert, denied, 135 S. Ct. 983, 190 L. Ed. 2d

836 (2015); U.S. v. Bastien, 111 F. Supp. 3d 315

(E.D. N.Y. 2015).

Louisiana law provides for the expungement

of certain arrest and conviction records under

limited circumstances. However, expungement

merely removes the record from public access; it does

not result in the destruction of the record. See La.

Cr. C. Pr Art. 971. Louisiana’s criminal Code of

Procedure states:

[n]othing in the Title shall be construed to

limit or impair in any way the subsequent use of any

lawful manner by law enforcement, law enforcement

agencies, prosecutors, or judges, including its use as

a predicate offense.... Id. Even though the

Defendant’s state court conviction has been

expunged, it still can be used as a predicate offense.

Thus, Defendant’s expunged state conviction

has no bearing on his conviction in this Court.

Additionally, Defendant argues that the

expungement of his conviction in Louisiana

by the Court that entered the conviction entitles the

petitioner to relief from his conviction in the state of

Mississippi. [ECF No.66]. Petitioner’s state

conviction was expunged; Louisiana did not expunge

his federal conviction.

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Inasmuch as the Defendant has waived his

right to seek post-conviction relief and Louisiana’s

law provides that an expunged conviction can serve

as a predicate offense, the Court finds that a hearing

on the motion is futile. For the foregoing reasons, the

Court finds that Defendant is not entitled to any of

the relief he seeks.

Accordingly, IT IS HEREBY ORDERED that

Defendant’s Motion for Audita Querla [ECF No.66]

is here by Denied.

IT IS FURTHER ORDERED that Defendant’s

Motion for Notice of Hearing [ECF No. 67] is hereby

Denied.

SO ordered this the 31st day of March, 2021.

/s/ David Bramlette

United States District Judge

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APPENDIX C

DEPARTMENT OF PUBLIC SAFETY AND

CORRECTIONS

DIVISION OF PROBATION AND PAROLE

BATON ROGUE, LOUISIANNA

DATE: 12/11/08

LETTERFOP

VERIFICATION OF FIRST OFFENDER PARDON

TERRANCE C GUINN

Race/Sex: B/M

110 ROYAL STREET

DOB: 09/14/73

PORT GIBSON, MS 39150

SID# 001724774

DOC# 00388976

DOCKET#: LIN 42042

To Whom It May Concern:

It appearing to Louisiana Department of Public

Safety and Corrections, Division of Probation and

Parole, that TERRANCE C GUINN was sentenced

by the Honorable JAMES BODDIE, Judge of the

3RD JUDICIAL DISTRICT Court, Parish of

LINCOLN, State of Louisiana, under the above

listed docket number (s) for the crime (s) of:

SCHEDULE I: HALLUCINOGENIC SUB POSS.

WITD MARIJUANA.

12a

And it further appearing that defendant has

completed this sentence and meets all of the

requirements for an automatic first offender pardon,

as outlined in R.S. 15:572. Now, therefore, as

provided by Article 1, Section 20, and Article 4,

Section 5(E) (1), of the Louisiana Constitution, this

will certify that effective FEBRUARY 8, 2005,

TERRANCE GUINN has discharged his/her

sentence for the above stated offense(s) and that all

rights of citizenship and franchise are restored in

Louisiana.

The right to receive, possess or transport a firearm

may not be restored unless all legal provisions are

met and should be determined through the local law

enforcement agency. Similarly, this pardon does not

constitute a waiver of any unpaid fines and fees, due

and owing, which may be enforced by the Court.

Eugenie C. Powers

Probation and Parole Director

Arlena McDonald

District Director

L-

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APPENDIX D

State Of Louisiana

Department of Public Safety and Corrections

Public Safety Service

September 03, 2020

Re: State of Louisiana v. Terrance Carvell Guinn

No: 42042

Certificate of Compliance with La C.CR.P. Art. 971,

et seq. As occasioned by the Honorable Judge in the

above captioned case and in compliance with La

C.Cr.P. Art. 971, et seq. all records on file with the

Louisiana State Police Criminal Identification and

Information, as they relate to the arrest of:

Terrance Guinn on 01/31/1997 by Lincoln Parish

Detention Center for possession of marijuana with

the intent and LA-DOC P&P Ouchita Probation for

possession of marijuana with intent to distribute.

Have been expunged and will be disclosed on a

confidential basis to any persons or agency entitled

to such Information pursuant to La. C. Cr. P. Art.

971.et.seq. The FBI has been notified of this action.

Lieutenant Lanica M. Kennedy, Deputy Director

Bureau of Criminal Identification and Information

Louisiana State Police.

Displaying title 18, up to date of 2/24/2022. Title 18

was last amended 2/15/2022. There have been

1

15a

APPENDIX E

TITLE 18 CONSERVATION OF POWER AND WATER

CHAPTER I—FEDERAL ENERGY REGULATORY

COMMISSION, DEPARTMENT OF ENERGY

Chapter I, Federal Energy Regulatory

Commission,..............................................

1 -399

Department of Energy

'Chapter III, Delaware River Basin

Commission.........................................

400 - 499

Subchapter A, Administrative Manual

400 - 420

Subchapter B, Special Regulations

430 - 499

Chapter VI, Water Resources Council

700 - 799

Part 700 {Reserved]

Part 701, Council Organization

701.1 - 701.314

Part 704, Plan Formulation Standards and

704.39

Procedures

Part 705, Nondiscrimination in Federally

705.1 - 705.12

Assisted

Programs - Effectuation of Title VI of the

Civil Rights Act of 1964

Part 706, Employee Responsibilities and

706.101 - 706.413

Conduct

16a

Part 707, Compliance with the

National........................................

707.1 - 707.11

Environmental Polley Act (NEPA)

Part 708 Upper Mississippi River Basin

Commission:................................................. 708.1 - 708.5

Public Participation in Upper Mississippi

River System Master Plan

Part 725, Implementation of Executive Orders

725.0 - 725.9

11988,

Floodplain Management and 11990, Protection

of Wetlands

Part 740, State Water Management

Planning................................................ 740.1 - 740.13

Program

Parts 741-799 [Reserved]

Chapter VIII, Susquehanna River Basin Commission

Part 800 [Reserved]

Part 801 General Policies

Parts 803-805 [Reserved]

Part 806, Review and Approval of

Projects...............................................

806.1-806.45

17a

Part 807, Water Withdrawal

Registration.............................

807.1-807.5

Part 808, Hearings and Enforcement

Actions.....................................................

808.1-808.19

Parts 809-899 {Reserved}