United States v. Phelp, No. 10-3264 (10th Cir. 2011)

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FILED United States Court of Appeals Tenth Circuit April 20, 2011 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FREDERICK D. PHELPS, JR., No. 10-3264 (D.C. Nos. 5:07-CR-40051-JAR-1 and 5:09-CV-04048-JAR) (D. Kan.) 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the court construed it as an unauthorized successive § 2255 motion and dismissed it for lack of * This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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 -2-

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