* This order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral estoppel. The

court generally disfavors the citation of orders and judgments;

nevertheless, an order and judgment may be cited under the terms and

conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

May 1, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DAVID OWEN

VANLITSENBORGH,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

No. 05-8114

(D.C. No. 05-CV-245-CAB)

(D. Wyo.)

ORDER AND JUDGMENT*

Before LUCERO, McCONNELL, and TYMKOVICH, Circuit Judges.

After examining the briefs and appellate record, this panel has

determined unanimously to grant the parties’ request for a decision on the

briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument. 

The defendant appeals the district court’s denial of his petition for a
writ of error audita querela which challenged the legality of his sentence

imposed following his conviction of drug and firearms offenses. We vacate

the order for lack of subject matter jurisdiction, construe the notice of

appeal and appellate brief as an implied application for leave to file a

successive 28 U.S.C. § 2255 motion, and deny authorization.

The defendant’s original § 2255 motion was denied by the district

court. Subsequently, the defendant filed the petition which is the subject of

this appeal, contending that his sentence is illegal under United States v.

Booker, 543 U.S. 220 (2005). The district court denied the motion,

concluding that § 2255 is neither inadequate nor unavailable, that § 2255

remained the exclusive means by which the defendant could raise such a

challenge, and that Booker is not retroactive. 

The defendant’s petition constituted a § 2255 motion under the

Antiterrorism and Effective Death Penalty Act. See United States v.

Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) (“[A] writ of audita querela is

not available to a petitioner when other remedies exist, such as a motion to

vacate sentence under 28 U.S.C. § 2255 .... [T]o allow a petitioner to avoid

the bar against successive § 2255 petitions by simply styling a petition

under a different name would severely erode the procedural restraints

imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”) (internal quotations

and citations omitted). Accordingly, the district court lacked jurisdiction
over the motion, and the district court order must be vacated. See Lopez v.

Douglas, 141 F.3d 974, 975-76 (10th Cir. 1998). 

However, we will construe the defendant’s notice of appeal and

appellate brief as a request for the required authorization. Id.

We have thoroughly reviewed the matter and conclude that the

defendant has failed to make the prima facie showing required by § 2255 as

amended by the Antiterrorism and Effective Death Penalty Act. His

contentions are not based on newly discovered evidence that, “if proven

and viewed in light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that no reasonable fact finder

would have found [him] guilty of the offense” or on a “new rule of

constitutional law, made retroactive to cases on collateral review by the

Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255.

Booker has not been made retroactive to cases on collateral review as

required by § 2255 ¶ 8. See Bey v. United States, 399 F.3d 1266, 1269 (10th

Cir. 2005) (“Pursuant to the Supreme Court’s holding in [Tyler v. Cain, 533

U.S. 656 (2001)] we must conclude that under the Antiterrorism and

Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.

1214, Booker may not be applied retroactively to second or successive

habeas petitions.”). Nor do the other claims raised by the defendant meet
the gatekeeping requirements.

The motion to proceed in forma pauperis is granted, the district court 

order is VACATED, and the implied application for authorization to file a

second § 2255 petition is DENIED. 

ENTERED FOR THE COURT

PER CURIAM