                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 15, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

          v.                                            No. 10-6133
                                              (D.C. Nos. 5:08-CV-01115-R and
 TRISTIN T. CHEADLE,                                5:07-CR-00062-R-1)
                                                        (W.D. Okla.)
               Defendant-Appellant.


                                      ORDER *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      Mr. Cheadle, a pro se federal prisoner, seeks a Certificate of Appealability

(“COA”) with no ascertainable § 2255 claim from which to appeal. We denied

Mr. Cheadle’s most recent § 2255 claim, which was based on claims different

than those presented in his current COA request, in 2009. Because Mr. Cheadle

proceeds pro se, we construe his filings liberally, see Ledbetter v. City of Topeka,

318 F.3d 1183, 1187 (10th Cir. 2003); however, given the absence of an

underlying § 2255 motion, we must deny his present request.

      In 2007, Mr. Cheadle pled guilty to being a felon in possession of a


      *
        This order is not binding precedent, except under the doctrines of law of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.
firearm. As part of his plea agreement, Mr. Cheadle waived his right to appeal or

collaterally challenge his conviction and sentence.

      In 2008, Mr. Cheadle filed a timely motion to vacate, set aside, or correct

his sentence under 28 U.S.C. § 2255, alleging his sentence was incorrectly

calculated based on the district court’s misapplication of the Sentencing

Guidelines. The district court denied the motion, finding his claim was barred by

the waiver in his plea agreement. We then denied Mr. Cheadle’s request for a

COA. See United States v. Cheadle, 336 F. App’x 779, 781 (10th Cir. 2009).

      On May 19, 2010, Mr. Cheadle filed another request for a COA, this time

with the district court, asserting (1) that he received ineffective assistance of

counsel in connection with his guilty plea, and (2) that the evidence against him

was insufficient to support his conviction. On May 20, 2010, the district court

denied his request, stating “[t]he Tenth Circuit has already entered an Order

denying a certificate of appealability in connection with Defendant’s Notice of

Appeal from this Court’s dismissal of Defendant’s § 2255 motion.” (Doc. 71 at 1

(citation omitted).) On June 7, 2010, Mr. Cheadle filed a “Notice of Appeal” with

the district court, asserting the district court’s order failed to consider his

ineffective assistance of counsel claim. The district court construed Mr.

Cheadle’s Notice of Appeal as a third COA request, and—citing its previous

order—denied the request as moot. Mr. Cheadle then filed this COA request,

which presents claims and arguments identical to his May 19, 2010 COA request

                                           -2-
before the district court.

      Judgment has already been entered on Mr. Cheadle’s original § 2255

motion, and Mr. Cheadle has no other § 2255 motion under which to appeal. See

28 U.S.C. § 2253(c)(1). Accordingly, we DENY Mr. Cheadle’s request for a

certificate of appealability. We GRANT his motion to proceed in forma pauperis.



                                            Entered for the Court



                                            Monroe G. McKay
                                            Circuit Judge




                                      -3-
