United States v. Hall

Opinion

Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 11, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3200 (D.C. Nos. 2:16-CV-02845-KHV & KEVIN TOMMIE HALL, 2:06-CR-20162-KHV-1) (D. Kan.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before HOLMES, KELLY, and ROSSMAN, Circuit Judges. _________________________________

Petitioner-Appellant Kevin Tommie Hall, a federal inmate appearing pro se,

seeks a Certificate of Appealability (COA) to appeal from the district court’s

overruling of his successive 28 U.S.C. § 2255 motion. United States v. Hall, No. 06-

cr-20162, 2021 WL 3722266 (D. Kan. Aug. 23, 2021). We previously authorized

this motion “limited to challenges to his § 924(c) conviction and sentence and to the

enhancement of his sentence under the ACCA.” Order at 4, In re Hall, No. 16-3214

(10th Cir. May 14, 2020). The district court rejected those challenges. On appeal,

Mr. Hall argues that no court has addressed his claim that the district court’s aiding

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 2

and abetting instruction and verdict form were erroneous under Rosemond v. United

States, 572 U.S. 65 (2014).

To obtain a COA from this court, Mr. Hall must make “a substantial showing

of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a claim has

been denied on the merits, the movant “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional claims debatable or

wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been

dismissed on procedural grounds, the movant must also demonstrate that the district

court’s procedural ruling was debatable. Id.

Here, the district court declined to consider the Rosemond claim on procedural

grounds, reasoning that this court’s authorization was limited to claims arising under

United States v. Davis, 139 S. Ct. 2319 (2019), and Johnson v. United States, 576

U.S. 591 (2015). Hall, 2021 WL 3722266, at *3. In the alternative, the district court

held that a Rosemond claim could not meet the requirements of 28 U.S.C.

§ 2255(h)(1) or (2) for allowing a successive § 2255 motion. Id. at *3–4. Mr. Hall’s

Rosemond claim has been addressed and found wanting, albeit in the context of

ineffective assistance of counsel and at times procedurally. See, e.g., United States

v. Hall, 772 F. App’x 762, 764–65 & n.2 (10th Cir. 2019) (unpublished). Regardless,

the district court’s conclusion that it is not within the scope of this court’s

authorization of a successive § 2255 motion is not reasonably debatable. A district

court lacks jurisdiction over successive § 2255 claims without this court’s

authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).

2 Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 3

We DENY a COA, DENY IFP, and DISMISS the appeal.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge