United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 22, 2003
Charles R. Fulbruge III
Clerk
No. 03-50372
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABEL TAVAREZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-80-CR-100-2-EP
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Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Abel Tavarez, federal prisoner # 94442-080, appeals the
district court’s dismissal of his motion for a writ of audita
querela wherein he sought to challenge his conviction for
conspiracy to possess with the intent to distribute heroin,
aiding and abetting the distribution of heroin, and possession
with the intent to distribute heroin.
*
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that this opinion should not be published and is not precedent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. 03-50372
-2-
The writ of audita querela is not available where the
prisoner has a remedy under 28 U.S.C. § 2255. See United States
v. Banda, 1 F.3d 354, 356 (5th Cir. 1993). The fact that the
movant cannot meet the requirements for bringing a successive 28
U.S.C. § 2255 motion under the AEDPA does not render the 28
U.S.C. § 2255 remedy unavailable. See United States v. Valdez-
Pacheco, 237 F.3d 1077, 1080 (9th Cir. 2001). To the extent that
Tavarez argues that he has been released from confinement and
thus cannot proceed under 28 U.S.C. § 2255, Tavarez has not yet
discharged his term of special parole; therefore, he is “in
custody” for habeas corpus purposes. See Maleng v. Cook, 490
U.S. 488, 491 (1989).
AFFIRMED.