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UNITED STATES v. JOHNSON

September 25, 1991

UNITED STATES OF AMERICA, Plaintiff,
v.
MANAPURATH EAPPEN JOHNSON, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE

 Manapurath Eappen Johnson -- originally indicted, convicted on a guilty plea and then sentenced under the name M.E. Johnson ("Johnson") -- has petitioned for a vacation of his conviction by issuance of a writ of audita querela, a writ of coram nobis or a writ of undefined specificity under the All Writs Act, 28 U.S.C. § 1651. *fn1" For the reasons stated in this memorandum opinion and order, Johnson's petition is denied.

 Background

 On June 28, 1983 Johnson changed his prior not-guilty plea to a plea of guilty to two counts of the indictment in this case, involving charges of conspiracy and distribution of a controlled substance (opium) in violation of 21 U.S.C. §§ 841(a)(1) and 846. On September 1 of that same year, this Court sentenced Johnson:

 
1. to two years' imprisonment on Count Four, suspending execution of that sentence during a five-year probationary period that included a four-month work-release custodial requirement, plus a special parole term of seven years; and
 
2. to five years' probation on Count One, running concurrently with the probationary term under Count Four.

 Because Johnson was then a permanent resident alien in the United States, the Immigration and Naturalization Service ("INS") undertook to deport him to India. That led to extended legal proceedings, which have culminated in a June 29, 1990 decision by our Court of Appeals upholding the denial of Johnson's request for relief under Immigration and Nationality Act § 212(c), 8 U.S.C. § 1182(c) (an unpublished order reported at 907 F.2d 153 (7th Cir. 1990) and available in full text as 1990 U.S. App. LEXIS 10916). *fn2"

 On July 31, 1990 Johnson filed a motion with this Court to vacate or set aside his sentence and stay his deportation, invoking 28 U.S.C. § 2255. After this Court denied such relief because of its view that jurisdiction was lacking, Johnson obtained a stay of deportation from this Court's colleague Honorable Nicholas Bua (then acting as emergency judge), who relied on the All Writs Act for that purpose. That stay is apparently still in effect.

 On August 16, 1991 Johnson filed the current petition with this Court. In factual terms his situation deserves the strongest sympathy despite his single drug-related offense, but the issue is rather whether this Court is properly empowered to grant relief based on those sympathy-evoking factors.

 Writ of Audita Querela

 Johnson has the good fortune to have a capable and imaginative lawyer, James W. Reilley ("Reilley"), representing him. In this instance Reilley has come up with the invocation of the ancient writ of audita querela, all other roads having been blocked. That writ has been abolished in civil cases by the adoption of Fed. R. Civ. P. 60(b), but it is not equally clear that it is wholly unavailable in federal criminal cases (United States v. Kimberlin, 675 F.2d 866, 869 (7th Cir. 1982)). For the present this Court will assume that audita querela is potentially available, so that the question is instead (as in Kimberlin) whether it would apply under the situation presented here.

 On that score, it should be made clear -- cutting away all the underbrush that both sides have strewn about the landscape in their opposing memoranda submitted on the current petition -- that there was no defect either in the conviction or the sentence that this Court imposed on Johnson. With no legal defect thus available as a peg on which Johnson can hang his hat, the question becomes whether audita querela operates to remedy a result that is challenged as unfair. If that characterization is instead changed to "just unfair" or "merely unfair," this Court should not be mistaken as denigrating the concept of unfairness. What is rather intended to be conveyed is the same concept as the term "purely equitable" that has been employed by two Courts of Appeals in United States v. Ayala, 894 F.2d 425, 429 (D.C. Cir. 1990) and United States v. Holder, 936 F.2d 1, 3 (1st Cir. 1991) (per curiam), each of which decisions rejected such a use of the writ.

 Before this opinion turns to the proper scope of audita querela, it should be said that if the issue were one of balancing equitable considerations, this Court would find the United States' presentation extraordinarily unpersuasive. Much of what the government's responsive memorandum states on the subject of fairness or equity, as contrasted with that memorandum's discussion of the legal questions about the writ's availability, reflects the kind of small-mindedness that in recent years has become identified with too much of the INS' activities. It scarcely accords with the message sought to be ...


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