United States v. Topsy

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 98-41059 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus JOHN HENRY TOPSY,

Defendant-Appellant.

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Appeal from the United States District Court for the Southern District of Texas USDC No. C-91-CR-303-1 - - - - - - - - - - May 12, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

John Henry Topsy (#55462-079), has applied for a certificate of appealability (“COA”) for an appeal from the dismissal of his motion under 28 U.S.C. § 2255 and of his application for a writ of audita querela. Topsy does not challenge the district court’s conclusion that his § 2255 motion is time-barred.

Even if it is assumed that the writ of audita querela survives as a vehicle for challenging criminal convictions, it is not available to Topsy because the issue he wishes to raise does not involve a legal defense which arose after the judgment. See United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). The request for a COA is DENIED AS UNNECESSARY and the appeal is DISMISSED AS FRIVOLOUS. See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2.

COA DENIED AS UNNECESSARY; APPEAL DISMISSED.