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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