Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1202 (D.C. Nos. 1:20-CV-03280-WJM & VINCENT MATHEWS, 1:16-CR-00129-WJM-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Vincent Mathews, a federal prisoner proceeding pro se, requests a certificate of
appealability (COA) to appeal the district court’s order denying him relief under
28 U.S.C. § 2255. We deny a COA and dismiss this matter.
BACKGROUND
Mr. Mathews was convicted in 2017 on two counts of interference with commerce
by robbery under 18 U.S.C. § 1951 and one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 210 months’
imprisonment, and this court affirmed his convictions.
* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 2
In November 2020, Mr. Mathews filed a motion under 28 U.S.C. § 2255 alleging
ineffective assistance of counsel in violation of the Sixth Amendment. He claimed his
trial attorney failed to tell him about incriminating evidence in the Government’s
possession, specifically GPS data placing him at the crime scene and a recording of a 911
call. Claiming surprise when this evidence was introduced at trial, Mr. Mathews argued
he would have elected to plead guilty had he known the strength of the Government’s
case. He asked the district court to vacate his sentence and resentence him in accordance
with the Government’s plea offer.1 Mr. Mathews also indicated that he would follow up
his motion with a supplemental filing containing supporting evidence.2 In response, the
Government disputed Mr. Mathews’s contention that he was unaware of the GPS
evidence and 911 calls, noting that such evidence was the subject of lengthy pretrial
litigation, including a hearing attended by Mr. Mathews. The Government also pointed
out that Mr. Mathews had provided neither details about the alleged plea offer nor
evidence he would have accepted it.
On November 25, 2020, Mr. Mathews did in fact file a supplement entitled
“Petitioner’s Timely Memorandum in Support of His [] Now-Pending Motion to Vacate,
Set Aside, or Correct Sentence [] Under 28 U.S.C. § 2255.” Suppl. R. at 29
(Supplemental Memorandum). The Supplemental Memorandum contained legal
arguments and citations in support of Mr. Mathews’s Sixth Amendment claim and
1 Mr. Mathews provided no details as to the contents of that offer. 2 Mr. Mathews’s original filing under § 2255 was submitted via a standardized form “AO 243” provided by the Federal Judiciary. 2 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 3
elaborated on his previously asserted factual allegations; it also attached several pages of
exhibits. Mr. Mathews’s sister, Nina Mathews, signed the Supplemental Memorandum.
Although she is not an attorney, Ms. Mathews asserted that she signed the document as
“next friend” of Mr. Mathews who lacked access to the prison library, copy machine, and
mailroom due to COVID-19 lockdown measures. In a response filed December 7, 2020,
the Government urged the court to strike the Supplemental Memorandum for failure to
comply with Federal Rule of Civil Procedure 11. Under that rule, “[e]very pleading,
written motion, and other paper must be signed by at least one attorney of record in the
attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ. P.
11(a). The rule instructs the district court to “strike an unsigned paper unless the
omission is promptly corrected after being called to the attorney’s or party’s attention.”
Id. In a reply dated December 14, 2020, Mr. Mathews reiterated his arguments in support
of his ineffective-assistance claim and attached additional pages of evidentiary support.
He did not address the Government’s request to strike his Supplemental Memorandum.
On October 12, 2021, the district court issued an order denying the § 2255 motion,
dismissing Mr. Mathews’s claims with prejudice, and denying a COA. The court
considered the merits of Mr. Mathews’s ineffective-assistance claim but found it both
factually and legally deficient. The court found his claim regarding the GPS evidence
belied by the record: “Mathews concedes—and the docket confirms—that his attorney
did disclose the [GPS] evidence, even if the Government presented it at trial in a manner
that Mathews did not anticipate.” Suppl. R. at 72. And with respect to both the GPS
evidence and the 911 recording, the court held that even if his counsel had failed to
3 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 4
disclose this evidence, Mr. Mathews had failed to show prejudice. The court explained
Mr. Mathews had provided no details concerning the alleged plea offer that he rejected,
much less evidence that he would have accepted it. “Rather, he submit[ted] only the
unadorned assertion that he would have pleaded guilty pursuant to a plea agreement
rather than proceed to trial.” Id. at 74 (internal quotation marks omitted). This, the court
concluded, was “insufficient to demonstrate prejudice.” Id. (citing United States v.
Watson, 766 F.3d 1219, 1225 (10th Cir. 2014)). It therefore denied relief under § 2255,
concluding Mr. Mathews had failed to make the requisite showing of a Sixth Amendment
violation under Strickland v. Washington, 466 U.S. 668 (1984). In addition, the court
struck the Supplemental Memorandum under Federal Rule of Civil Procedure 11(a)
because it was signed by neither Mr. Mathews nor an attorney of record.
On May 3, 2023, the district court denied a motion for reconsideration filed by
Mr. Mathews under Federal Rule of Civil Procedure 59(e). Mr. Mathews then filed a
timely application for a COA in this court.
DISCUSSION
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Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 25, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-1202 (D.C. Nos. 1:20-CV-03280-WJM & VINCENT MATHEWS, 1:16-CR-00129-WJM-1) (D. Colo.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before MATHESON, BALDOCK, and EID, Circuit Judges. _________________________________
Vincent Mathews, a federal prisoner proceeding pro se, requests a certificate of
appealability (COA) to appeal the district court’s order denying him relief under
28 U.S.C. § 2255. We deny a COA and dismiss this matter.
BACKGROUND
Mr. Mathews was convicted in 2017 on two counts of interference with commerce
by robbery under 18 U.S.C. § 1951 and one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 210 months’
imprisonment, and this court affirmed his convictions.
* 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: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 2
In November 2020, Mr. Mathews filed a motion under 28 U.S.C. § 2255 alleging
ineffective assistance of counsel in violation of the Sixth Amendment. He claimed his
trial attorney failed to tell him about incriminating evidence in the Government’s
possession, specifically GPS data placing him at the crime scene and a recording of a 911
call. Claiming surprise when this evidence was introduced at trial, Mr. Mathews argued
he would have elected to plead guilty had he known the strength of the Government’s
case. He asked the district court to vacate his sentence and resentence him in accordance
with the Government’s plea offer.1 Mr. Mathews also indicated that he would follow up
his motion with a supplemental filing containing supporting evidence.2 In response, the
Government disputed Mr. Mathews’s contention that he was unaware of the GPS
evidence and 911 calls, noting that such evidence was the subject of lengthy pretrial
litigation, including a hearing attended by Mr. Mathews. The Government also pointed
out that Mr. Mathews had provided neither details about the alleged plea offer nor
evidence he would have accepted it.
On November 25, 2020, Mr. Mathews did in fact file a supplement entitled
“Petitioner’s Timely Memorandum in Support of His [] Now-Pending Motion to Vacate,
Set Aside, or Correct Sentence [] Under 28 U.S.C. § 2255.” Suppl. R. at 29
(Supplemental Memorandum). The Supplemental Memorandum contained legal
arguments and citations in support of Mr. Mathews’s Sixth Amendment claim and
1 Mr. Mathews provided no details as to the contents of that offer. 2 Mr. Mathews’s original filing under § 2255 was submitted via a standardized form “AO 243” provided by the Federal Judiciary. 2 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 3
elaborated on his previously asserted factual allegations; it also attached several pages of
exhibits. Mr. Mathews’s sister, Nina Mathews, signed the Supplemental Memorandum.
Although she is not an attorney, Ms. Mathews asserted that she signed the document as
“next friend” of Mr. Mathews who lacked access to the prison library, copy machine, and
mailroom due to COVID-19 lockdown measures. In a response filed December 7, 2020,
the Government urged the court to strike the Supplemental Memorandum for failure to
comply with Federal Rule of Civil Procedure 11. Under that rule, “[e]very pleading,
written motion, and other paper must be signed by at least one attorney of record in the
attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ. P.
11(a). The rule instructs the district court to “strike an unsigned paper unless the
omission is promptly corrected after being called to the attorney’s or party’s attention.”
Id. In a reply dated December 14, 2020, Mr. Mathews reiterated his arguments in support
of his ineffective-assistance claim and attached additional pages of evidentiary support.
He did not address the Government’s request to strike his Supplemental Memorandum.
On October 12, 2021, the district court issued an order denying the § 2255 motion,
dismissing Mr. Mathews’s claims with prejudice, and denying a COA. The court
considered the merits of Mr. Mathews’s ineffective-assistance claim but found it both
factually and legally deficient. The court found his claim regarding the GPS evidence
belied by the record: “Mathews concedes—and the docket confirms—that his attorney
did disclose the [GPS] evidence, even if the Government presented it at trial in a manner
that Mathews did not anticipate.” Suppl. R. at 72. And with respect to both the GPS
evidence and the 911 recording, the court held that even if his counsel had failed to
3 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 4
disclose this evidence, Mr. Mathews had failed to show prejudice. The court explained
Mr. Mathews had provided no details concerning the alleged plea offer that he rejected,
much less evidence that he would have accepted it. “Rather, he submit[ted] only the
unadorned assertion that he would have pleaded guilty pursuant to a plea agreement
rather than proceed to trial.” Id. at 74 (internal quotation marks omitted). This, the court
concluded, was “insufficient to demonstrate prejudice.” Id. (citing United States v.
Watson, 766 F.3d 1219, 1225 (10th Cir. 2014)). It therefore denied relief under § 2255,
concluding Mr. Mathews had failed to make the requisite showing of a Sixth Amendment
violation under Strickland v. Washington, 466 U.S. 668 (1984). In addition, the court
struck the Supplemental Memorandum under Federal Rule of Civil Procedure 11(a)
because it was signed by neither Mr. Mathews nor an attorney of record.
On May 3, 2023, the district court denied a motion for reconsideration filed by
Mr. Mathews under Federal Rule of Civil Procedure 59(e). Mr. Mathews then filed a
timely application for a COA in this court.
DISCUSSION
“The issuance of a COA is a jurisdictional prerequisite to an appeal from the
denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228,
1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, the
applicant must make “a substantial showing of the denial of a constitutional right.”
§ 2253(c)(2). To make that showing, he “must demonstrate that reasonable jurists could
debate whether (or, for that matter, agree that) the particular issue raised in the petition
should have been resolved in a different manner or that the issue presented was adequate
4 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 5
to deserve encouragement to proceed further.” Gonzalez, 596 F.3d at 1241 (internal
quotation marks and brackets omitted).
Mr. Mathews has not even attempted to make that showing here. As a pro se
litigant Mr. Mathews is of course entitled to a liberal construction of his filings. Watkins
v. Leyba, 543 F.3d 624, 625 n.1 (10th Cir. 2008). But the court will not act as his
attorney and construct his arguments for him. Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005). And “an appellant’s pro se status does not excuse
the obligation of any litigant to comply with the fundamental requirements of the Federal
Rules of Civil and Appellate Procedure.” Ogden v. San Juan Cnty., 32 F.3d 452, 455
(10th Cir. 1994). Even liberally construed, Mr. Mathews’s COA application contains no
argument challenging the district court’s resolution of his constitutional claim. As
previously noted, the district court considered the § 2255 motion on the merits and held
Mr. Mathews had failed to show ineffective assistance on the part of his trial counsel.
Mr. Mathews does not challenge this holding or offer any reason why reasonable jurists
might debate its correctness. He has therefore failed to make the required showing under
§ 2253(c)(2) and forfeited potential appellate consideration of this issue. Bronson v.
Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
Mr. Mathews devotes the entirety of his brief to the part of the district court order
striking the Supplemental Memorandum. He attacks this ruling on multiple grounds,
5 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 6
essentially arguing the district court should have allowed him to cure the defect3 and that
his sister’s signature was acceptable under the “next-friend doctrine.” We are not at
liberty to address this argument on a COA application, the granting of which “requires an
underlying constitutional claim.” United States v. Mulay, 805 F.3d 1263, 1265 (10th Cir.
2015). “Our precedent is clear that a claim of error concerning statutory interpretation is
insufficient to warrant a COA . . . .” Id. Accordingly, to the extent Mr. Mathews
requests a COA to challenge the district court’s application of Federal Rule of Civil
Procedure 11(a), we must deny that request.
Mr. Mathews contends the striking of the Supplemental Memorandum “effectively
denied [him] his day in court.” COA Appl. at 10. But even construed liberally as a due
process claim properly raised on a COA application, we must reject this argument
because Mr. Mathews fails to explain how he was prejudiced by the court’s action. See
United States v. Lovasco, 431 U.S. 783, 790 (1977) (“[P]roof of prejudice is generally a
necessary but not sufficient element of a due process claim.”). Although he makes
numerous claims of error concerning the stricken memorandum, nowhere does
Mr. Mathews contend the district court failed to consider any of his substantive
arguments. Nor could he. Contrary to Mr. Mathews’s contention, the district court did
not deny his § 2255 motion on procedural grounds or because it believed jurisdiction was
3 We note the district court’s order came almost a year after the Government moved to strike the Supplemental Memorandum. Mr. Mathews does not explain why he made no effort to cure the defective filing in that ten-month period.
6 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 7
lacking.4 The court carefully considered all arguments made in support of the § 2255
motion and denied relief on the merits.
The court struck the Supplemental Memorandum for failure to comply with
Rule 11(a). But there is no indication—and Mr. Mathews does not argue—that the
Supplemental Memorandum contained unique arguments not otherwise asserted and
considered. To the contrary, the Supplemental Memorandum merely repeated the claims
in Mr. Mathews’s original filing—that his counsel’s “misadvice” regarding the
Government’s possession of incriminating evidence “caused him to pass on a guilty plea
[] that he otherwise would have accepted.” COA Appl. at 8 (describing the arguments
made in the Supplemental Memorandum). Because the district court explicitly
considered and rejected this contention, Mr. Mathews cannot show that he was prejudiced
by the order striking the Supplemental Memorandum.
CONCLUSION
By failing to address the district court’s ruling on his Sixth Amendment claim,
Mr. Mathews has necessarily failed to make “a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). The district court’s application of Federal Rule of
Civil Procedure 11(a) is not a proper basis for granting a COA. And to the extent
Mr. Mathews attempts to assert a due process violation stemming from the stricken
4 Mr. Mathews makes several references to the district court’s jurisdiction and how striking the Supplemental Memorandum might have affected it. See, e.g., COA Appl. at 13 (“The district court erroneously struck [the Supplemental Memorandum] without issuing an Order directing him to cure the deficiency . . . which would have established jurisdiction irrespective of his sister’s standing.”); see also id. at 15 (“[T]he district court had jurisdiction because his sister Nina was a proper next friend . . . .”). 7 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 8
supplement, his failure to show prejudice, again, means he has failed to make a
substantial showing of the denial of a constitutional right.
The COA application is DENIED and this matter is dismissed.
Mr. Mathews’s request to proceed in forma pauperis is GRANTED.
Entered for the Court
Allison H. Eid Circuit Judge