                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   August 25, 2010
                                                                   Elisabeth A. Shumaker
                                 TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                       No. 10-3136
       v.                                                  (D. Kansas)
 CHARLES LALIBERTE,                          (D.C. Nos. 6:10-CV-01059-WEB and
                                                   6:07-CR-10022-WEB-4)
              Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Charles Laliberte entered a conditional plea of guilty to conspiracy to

distribute a controlled substance, reserving the right to appeal the denial of his

motion to suppress evidence. On appeal we affirmed the denial. See United

States v. Laliberte, 308 F. App’x 295 (10th Cir. 2009). Mr. Laliberte then filed a

motion under 18 U.S.C. § 2255 to set aside his conviction. The motion was

denied by the district court, and Mr. Laliberte now seeks a certificate of

appealability (COA) to appeal that denial. See 28 U.S.C. § 2253(c) (requiring

COA to appeal denial of application). We deny a COA and dismiss the appeal.

      Mr. Laliberte’s application for a COA and opening brief in this appeal is

rambling and incoherent. But it is clear that the gist of it relates to the search that

he challenged on his prior appeal. Although he contends that his attorney
rendered ineffective assistance, his pleading in this court does not mention any

specific lapse by his attorney. Rather, his arguments address the merits of his

suppression motion.

      To obtain a COA in a § 2255 proceeding, the movant must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). This standard requires “a demonstration that . . . includes showing

that reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other

words, the applicant must show that the district court’s resolution of the

constitutional claim was either “debatable or wrong.” Id.

      Under that standard, Mr. Laliberte is not entitled to a COA. His argument

in this court is no more than a challenge to our ruling on his prior appeal. But we

will not consider an issue raised under § 2255 that we have resolved on a prior

appeal. See United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (per

curiam) (“Absent an intervening change in the law of a circuit, issues disposed of

on direct appeal generally will not be considered on a collateral attack by a

motion pursuant to § 2255.”).

      No reasonable jurist could debate that the district court erred in denying

Mr. Laliberte’s motion under § 2255.

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     We DENY the application for COA and dismiss the appeal. We also

DENY all pending motions.

                                  ENTERED FOR THE COURT


                                  Harris L Hartz
                                  Circuit Judge




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