               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 98-41059
                         Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOHN HENRY TOPSY,

                                           Defendant-Appellant.

                       - - - - - - - - - -
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. C-91-CR-303-1
                       - - - - - - - - - -

                            May 12, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     John Henry Topsy (#55462-079), has applied for a certificate

of appealability (“COA”) for an appeal from the dismissal of his

motion under 28 U.S.C. § 2255 and of his application for a writ

of audita querela.   Topsy does not challenge the district court’s

conclusion that his § 2255 motion is time-barred.

     Even if it is assumed that the writ of audita querela

survives as a vehicle for challenging criminal convictions, it is

not available to Topsy because the issue he wishes to raise does

not involve a legal defense which arose after the judgment.       See

     *
       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this opinion should not be published and is not precedent except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.
United States v. Banda, 1 F.3d 354, 356 (5th Cir. 1993).   The

request for a COA is DENIED AS UNNECESSARY and the appeal is

DISMISSED AS FRIVOLOUS.   See Howard v. King, 707 F.2d 215, 219-20

(5th Cir. 1983); 5th Cir. R. 42.2.

     COA DENIED AS UNNECESSARY; APPEAL DISMISSED.
