United States v. Garza

* Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 21, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-40437
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HILARIO GARZA, III, also known as Lalo,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:95-CR-107-1
USDC No. 2:97-CV-532
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Before STEWART, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Hilario Garza, III, federal prisoner # 62236-079, seeks a
certificate of appealability (COA) from the denial of his
petition for a writ of audita querela, in which he challenged his
conviction for conspiracy to possess with intent to distribute
marijuana. A COA is not required for Garza to appeal. See
28 U.S.C. § 2253(c). The district court correctly denied Garza’s
petition for a writ of audita querela because redress was
available to Garza under 28 U.S.C. § 2255. See Tolliver v.

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No. 05-40437
-2-
Dobre, 211 F.3d 876, 878 (5th Cir. 2000); United States v. Banda,
1 F.3d 354, 356 (5th Cir. 1993).
Accordingly, Garza’s motion to proceed in forma pauperis is
DENIED, and the appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR.
R. 42.2. COA is DENIED as unnecessary.

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