                                                        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.


                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. SA-80-CR-100-2-EP
                       --------------------

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that this opinion should not be published and is not precedent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.
