                                                                       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        This order is not binding precedent except under the doctrines of law of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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