United States v. Phelps , 422 F. App'x 681 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
April 20, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 10-3264
(D.C. Nos. 5:07-CR-40051-JAR-1 and
v.
5:09-CV-04048-JAR)
(D. Kan.)
FREDERICK D. PHELPS, JR.,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before LUCERO, GORSUCH, and MATHESON, Circuit Judges.
Frederick D. Phelps, a federal prisoner proceeding pro se, filed a writ of
audita querela in the District of Kansas, attacking his sentence. But the district
court held such a challenge must be brought under 28 U.S.C. § 2255. See United
States v. Torres, 282 F.3d 1241, 1245 (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.” (internal quotation omitted)).
Rather than dismissing Mr. Phelps’s petition, however, the court construed it as
an unauthorized successive § 2255 motion and dismissed it for lack of
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction. See In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam)
(“A district court does not have jurisdiction to address the merits of a second or
successive § 2255 . . . claim until this court has granted the required
authorization.”). We discern no error in the district court’s reasoning or result
and so deny Mr. Phelps’s application for a certificate of appealability and dismiss
his appeal. In addition, we deny Mr. Phelps’s motion to proceed in forma
pauperis as he fails to present a non-frivolous argument on appeal.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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