IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40674
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KARL GAYWIN ACLESE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:94-CR-81-2
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June 15, 2000
Before JOLLY, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Karl Gaywin Aclese, federal inmate #04913-078, appeals the
district court’s dismissal of his Fed. R. Civ. P. 60(b)(6)
motion. Aclese’s motion for appointment of counsel is DENIED.
Aclese’s Rule 60(b)(6) motion challenged his criminal
conviction for conspiracy to possess with intent to distribute
cocaine base on the grounds that the Government failed to
disclose favorable evidence in the form of a taped statement made
by an informant. Aclese alleged that the statement would have
shown a material variance in the indictment and would have shown
*
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that this opinion should not be published and is not precedent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.
No. 99-40674
-2-
that he was not guilty of the drug conspiracy. Aclese also
contends that he should not have been held accountable for the
quantity of drugs that was used to determine his sentence.
Federal Rule of Civil Procedure 60(b) “does not provide for
relief from a judgment in a criminal case.” United States v.
O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999). Rule 60(b) may not
be used as a vehicle to circumvent restraints on filing
successive 28 U.S.C. § 2255 motions. See United States v. Rich,
141 F.3d 550, 553 (5th Cir. 1998), cert. denied, 526 U.S. 1011
(1999). The writ of audita querela is not available when the
defendant may seek redress under § 2255. See United States v.
Banda, 1 F.3d 354, 356 (5th Cir. 1993). Section 2255 relief is
available for claims of newly discovered evidence provided that
the successive petition meets the requirements under 28 U.S.C.
§ 2244(b).
Accordingly, the district court’s judgment is AFFIRMED.
AFFIRMED; MOTION DENIED.