* This order and judgment is not binding precedent, e xcept under

the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders an d judgments; nevertheless, an order and judgment may be cited un der 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, andTYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ reques t 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 w ithout oral argument. The defendant appeals the district court’s denial o f his petition for awrit of error audita querela which challenged the l egality of his sentence

imposed following his conviction of drug and firear ms offenses. We vacate the order for lack of subject matter jurisdiction, construe the notice of appeal and appellate brief as an implied applicatio n for leave to file a successive 28 U.S.C. § 2255 motion, and deny author ization. The defendant’s original § 2255 motion was denied b y the district court. Subsequently, the defendant filed the petit ion which is the subject of this appeal, contending that his sentence is illega l under United States v. Booker , 543 U.S. 220 (2005). The district court denied t he motion, concluding that § 2255 is neither inadequate nor u navailable, that § 2255 remained the exclusive means by which the defendantcould raise such a challenge, and that Bookeris not retroactive. The defendant’s petition constituted a § 2255 motio n under the Antiterrorism and Effective Death Penalty Act. See United States v.
Torres , 282 F.3d 1241, 1246 (10th Cir. 2002) (“[A] writ o f audita querela is not available to a petitioner when other remedies e xist, such as a motion to vacate sentence under 28 U.S.C. § 2255 .... [T]o al low a petitioner to avoid the bar against successive § 2255 petitions by simp ly styling a petition under a different name would severely erode the pro cedural restraints imposed under 28 U.S.C. §§ 2244(b)(3) and 2255.”) ( internal quotations and citations omitted). Accordingly, the district court lacked jurisdictionover 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 autho rization. Id. We have thoroughly reviewed the matter and conclude that the defendant has failed to make the prima facie showin g required by § 2255 as amended by the Antiterrorism and Effective Death Pe nalty Act. His contentions are not based on newly discovered evide nce that, “if proven and viewed in light of the evidence as a whole, wou ld 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 co llateral review by the Supreme Court, that was previously unavailable.” 2 8 U.S.C. § 2255. Bookerhas not been made retroactive to cases on collater al 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 holdin g 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. 10 4-132, 110 Stat. 1214, Bookermay not be applied retroactively to second or succ essive habeas petitions.”). Nor do the other claims raise d by the defendant meetthe 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