          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                February 18, 2009
                                No. 08-50326
                             Conference Calendar             Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

CULLEN REED HARRIS

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 6:91-CR-43-2


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Cullen Reed Harris, federal prisoner # 01864-063, was convicted of
conspiracy to manufacture and manufacturing more than 1,000 grams of
methamphetamine. He was sentenced to life imprisonment and ten years of
supervised release on each count, the sentences to be served concurrently, and
fined $25,000 on each count, for a total fine of $50,000. Harris seeks leave to
proceed in forma pauperis (IFP) on appeal from the district court’s denial of his



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50326

petition for writ of audita querela seeking to remove the lien for the payment of
the fine placed on the house owned by Harris and his wife. By moving for leave
to proceed IFP, Harris is challenging the district court’s certification that his
appeal is not taken in good faith because it is frivolous. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3); F ED. R. A PP. P. 24(a)(5).
      For the first time on appeal, Harris argues that the district court
improperly delegated to the Bureau of Prisons (BOP) the authority to set the
schedule of payments on his fine. He asserts that the fines on both counts
should have run “concurrently” for a total fine of $25,000. He maintains that the
lien on the house is imposing an undue hardship on his wife and should be
removed in the interest of justice. Harris argues that a petition for writ of
audita querela is the proper vehicle to raise his claims.
      We do not consider Harris’s claim based upon the BOP setting the
schedule of payments because it is being raised for the first time in an appeal
from the denial of a collateral challenge to a criminal judgment. See Henderson
v. Cockrell, 333 F.3d 592, 605 (5th Cir. 2003). Harris’s claim that his fines
should have been “concurrent” arose at the time the judgment was entered and,
therefore, cannot be raised in an audita querela petition because it is not a “legal
defense arising after the judgment.” United States v. Banda, 1 F.3d 354, 356
(5th Cir. 1993). Harris’s claim that the lien should be removed because of the
hardship that it is causing his wife is not cognizable in a petition for audita
querela because the claim raises an equitable defense to the judgment, not a
legal defense. See id.
      Harris has failed to raise any nonfrivolous issues for appeal. See Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983). The IFP motion is DENIED, and the
appeal is DISMISSED as frivolous. See Baugh, 117 F.3d at 202; 5 TH C IR. R. 42.2.
Harris is WARNED that the filing or prosecution of frivolous appeals in the
future will subject him to sanctions. See Coghlan v. Starkey, 852 F.2d 806, 817
n.21 (5th Cir. 1988).

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