Case: 18-30710 Document: 00514873446 Page: 1 Date Filed: 03/14/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-30710 FILED
March 14, 2019
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARION MCCOY,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:98-CR-207-6
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Garion McCoy, federal prisoner # 01162-748, appeals the district court’s
denial of his motion for a writ of audita querela under the All Writs Act, 28
U.S.C. § 1651. McCoy alleges that the Government suppressed impeachment
evidence relating to the key witness who testified against him at trial. McCoy
was convicted of conspiring to distribute cocaine base, using and carrying a
firearm in relation to a drug trafficking crime, and being a felon in possession
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-30710 Document: 00514873446 Page: 2 Date Filed: 03/14/2019
No. 18-30710
of a firearm. Although he has raised the same claim in a motion for a new trial,
a 28 U.S.C. § 2255 motion, and an attempted successive § 2255 motion, McCoy
again asserts that new evidence discredits the witness’s testimony and that
the Government should have corrected the witness’s false testimony during
trial.
McCoy cannot challenge the Government’s failure to disclose evidence by
writ of audita querela, as he does not identify “a legal objection to a judgment
which has arisen subsequent to that judgment.” See United States v. Miller,
599 F.3d 484, 488 (5th Cir. 2010); Jimenez v. Trominski, 91 F.3d 767, 768 (5th
Cir. 1996) (affirming denial of writ of audita querela alleging failure to disclose
exculpatory evidence because petitioner did not raise “a legal defense arising,
after the entry of judgment, sufficient to justify issuance of the extraordinary
writ”). Moreover, McCoy fails to show that redress is unavailable under § 2255.
See Miller, 599 F.3d at 487-88; United States v. Banda, 1 F.3d 354, 356 (5th
Cir. 1993). That McCoy may not satisfy the requirements for a successive
§ 2255 petition does not render that remedy unavailable. See Tolliver v. Dobre,
211 F.3d 876, 878 (5th Cir. 2000).
The district court’s judgment is therefore AFFIRMED.
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