This case is before us for a fourth time. The petitioner, a former service member, seeks extraordinary relief from this court in the nature of a writ of error coram nobis or, in the alternative, in the nature of a writ of audita querela, under the All Writs Act, 28 U.S.C. § 1651(a). The petitioner avers that his appellate defense counsel were ineffective in representing him by failing to raise as error Military Rule Of Evidence (Mil. R. Evid.)413, Manual for Courts-Martial, United States (2005 ed.) issues raised at trial. Alternatively, he asserts that even if his appellate defense counsel were not ineffective and no writ of error coram nobis should issue, a writ of audita querela should issue to prevent continued enforcement of his conviction—and the resulting sex offender registration requirements—in light of the Court of Appeals for the Armed Forces’s (CAAF) decision in United States v. Hills, 75 M.J. 350 (C.A.A.F. 2016). The petitioner claims Hills should apply retroactively to his case.
Burleson v. United States, No. 200700143, 2018 CCA LEXIS 87, at *1-2 (N-M Ct. Crim. App. Feb. 26, 2018).
Audita querela is a latin term meaning “the complaint having been heard.” A defendant can seek a rehearing of a decided matter due to the newly discovered evidence or newly existing legal defenses, through a writ of audita querela. A writ of audita querela attacks a judgment that becomes incorrect later because of circumstances that arose after the judgment was issued.
A general discussion of the “writ” is from Caleb J. Fountain, Audita Querela, and the Limits of Federal Nonretroactivity. 70 NYU ANN. SURV. AM LAW 203 (2014).