Sign In
Events
Newsletters
Search

Close

Close Search

Cancel

SEARCH
MY LAW.COMNEW

United States of America v. Frederick D. Phelps, Jr

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.

Trending Stories

 
Reprints & Licensing
Mentioned in a Law.com story?

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

LEARN MORE

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
Go to CLE Center
British Legal Awards 2024
November 27, 2024
London

Celebrating achievement, excellence, and innovation in the legal profession in the UK.


Learn More
GlobeSt. Healthcare Real Estate 2024
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
ThinkAdvisor LUMINARIES Awards 2024
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More
Go to Events Go to Webcasts
ATTORNEY - REMOTE - NEW YORK

Experienced Insurance Defense Attorney.No in office requirement.Send resume to:


Apply Now ›
Associate General Counsel, Global Employment

Role TitleAssociate General Counsel, Global EmploymentGrade F13Reporting ToSenior Legal Counsel, Global EmploymentProgram/Tool/ Department/U...


Apply Now ›
Associate Attorney

Ryan & Conlon, LLP, is a boutique firm specializing in insurance defense. We are a small eclectic practice with a busy and fast paced en...


Apply Now ›
Go to Lawjobs