X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
ORDER DENYING CERTIFICATE OF APPEALABILITY *fn1

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 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.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

Women, Influence & Power in Law Awards (WIPLA) 2022

October 18, 2022
Washington, DC

Women, Influence & Power in Law Awards honors women lawyers who have made a remarkable difference in the legal profession.


Learn More

National Law Journal Legal Awards (NLJLA) 2022

October 20, 2022
Washington, DC

The National Law Journal honors attorneys & judges who've made a remarkable difference in the legal profession in the D.C. area.


Learn More

GlobeSt. Multifamily Fall 2022

October 24, 2022 - October 25, 2022
Los Angeles, CA

Join the industry's top owners, investors, developers, brokers & financiers at THE MULTIFAMILY EVENT OF THE YEAR!


Learn More

Bankruptcy Attorney


COLE SCHOTZ P.C. BANKRUPTCY ATTORNEY- DELAWARE, NEW JERSEY OR NEW YORK OFFICES:Seeking a bankruptcy attorney with 2+ years of experience to ...


Apply Now ›

Real Estate Paralegal


COLE SCHOTZ P.C. COMMERCIAL REAL ESTATE PARALEGAL- NEW YORK OR NEW JERSEY OFFICES: Major law Firm seeks a Commercial Real Estate Paralegal t...


Apply Now ›

LITIGATION ATTORNEY- ATLANTA, GEORGIA- ENTRY LEVEL


0-5 year associate attorney needed for a civil litigation firm in the Buckheadarea. Great opportunity for advancement. Salary will be commen...


Apply Now ›

CHIESA SHAHINIAN & GIANTOMASI

09/26/2022
NYLJ Web

Chiesa Shahinian & Giantomasi : Commitment to the highest standards of service.


View Announcement ›

SCHULTEN WARD TURNER & WEISS, LLP

09/21/2022
DR Web

Schulten Ward Turner & Weiss, LLP is pleased to announce that John Gracia has joined the firm as a partner.


View Announcement ›

WISNIEWSKI & ASSOCIATES

09/12/2022
NJLJ Web

WISNIEWSKI & ASSOCIATES LLC Takes pleasure in announcing that Civil Litigator DOUGLAS R. D ANTONIO has become a Partner of the Firm.


View Announcement ›