United States v. Roark

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 27, 2026
• Docket: 25-5169
• Status: Unpublished

Opinion

Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 27, 2026 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 25-5169 (D.C. Nos. 4:25-CV-00423-GKF-MTS & LANCE DOUGLAS ROARK, 4:23-CR-00262-GKF-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before TYMKOVICH, PHILLIPS, and FEDERICO, Circuit Judges. _________________________________

Lance Roark, proceeding pro se, 1 applies for a certificate of appealability to

appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence.

For the reasons below, we DENY a COA and DISMISS this matter.

I. Background

In January 2024, a federal jury convicted Roark of abusive sexual contact in

Indian Country with a minor under twelve years old (Count One), and assault in Indian

Country with intent to commit aggravated sexual abuse of a minor under twelve years old

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 We construe Roark’s application liberally, but we will not act as his advocate. See Luo v. Wang, 71 F.4th 1289, 1291 n.1 (10th Cir. 2023). Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 2

(Count Two). See 18 U.S.C. §§ 2244(a)(5), 113(a)(1). Roark’s victim was his then-

eleven-year-old daughter.

After the jury’s verdict, the district court reconsidered and granted Roark’s pretrial

Fed. R. Crim. P. 29 motion for a judgment of acquittal on Count Two. But after the

government moved for reconsideration, the district court reversed course and vacated the

judgment of acquittal. The district court subsequently sentenced Roark to 235 months in

prison.

Roark appealed his convictions. He argued (1) the district court erred by not

instructing the jury on unanimity; (2) the district court erred by granting the

government’s motion for reconsideration of the judgment of acquittal; and (3) the

government did not present sufficient evidence for the jury to convict him of Count Two.

We affirmed his convictions on all grounds. See generally United States v. Roark, 140

F.4th 1280 (10th Cir. 2025).

In August 2025, Roark moved the district court to vacate his sentence under 28

U.S.C. § 2255. He alleged (1) the district court did not have jurisdiction over his case

because the government lacked Article III standing to prosecute him; (2) ineffective

assistance of his standby counsel; and (3) various grounds that constituted a mistrial. The

district court denied his § 2255 motion on all grounds and denied a COA. Roark then

applied for a COA from this court and separately moved for an emergency hearing.

We issue a COA “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet this standard, the

applicant must show “that reasonable jurists could debate whether . . . the petition should

2 Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 3

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) (quotation marks omitted). Our “inquiry does not require full consideration of the

factual or legal bases adduced in support of the claims,” but rather “an overview of the

claims” and “a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322,

336 (2003).

In his application to this court for a COA, Roark abandoned the second and third

grounds for his § 2255 motion and asserts only his first ground. 2 See Aplt. Br. at 4

2 Roark, however, appears to raise a new argument in his application for a COA. He argues that 28 U.S.C. § 2253(c)(1)(B)’s requirement that he obtain a COA before he can appeal the district court’s § 2255 order violates his First Amendment “right to petition my government.” Aplt. Br. at 5. The COA requirement, he claims, imposes a “condition[] which require[s] the relinquishment of constitutional rights.” Id. (quoting Frost v. R.R. Comm’n of State of Cal., 271 U.S. 583, 593–94 (1926)). Roark offers no additional authority or analysis for this argument.

“[T]he Petition Clause protects the right of individuals to appeal to courts and other forums established by the government for resolution of legal disputes.” Borough of Duryea v. Guarnieri, 564 U.S. 379, 387 (2011). This right, however, only affords a “right of access to courts for redress of wrongs.” Id. (emphasis added). As shown by his application, Roark has had (and continues to have) ample access to petition the federal courts. But that does not mean the courts must consider unfounded petitions. See McDonald v. Smith, 472 U.S. 479, 482 (1985) (“The right to petition is . . . an assurance of a particular freedom of expression.”); cf. Stephen Higginson, A Short History of the Right To Petition Government for the Redress of Grievances, 96 Yale L.J. 142, 166 (1986) (arguing that although the Court has “confine[d] the First Amendment petition guarantee to presentation, or free expression,” its “original meaning” encompassed “a right which [] compelled legislatures to accord citizens’ petitions fair hearing and consideration” (emphasis added)).

In any event, Roark did not present this argument to the district court, and he has not supported it here with any pertinent legal authority. Accordingly, he has forfeited the issue, and we need not address it further. See Philips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992) (“[W]e decline to consider the matter, because it was not raised before 3 Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 4

(“[B]ecause the [second and third] issues are moot in light of the first issue, I ask this

Court to [proceed] without regard for the issues not argued in this appeal.”). We

therefore only address Roark’s argument that the district court lacked jurisdiction over his

case because the government did not have Article III standing. See Tran v. Trs. of State

Colls. of Colo., 355 F.3d 1263, 1266 (10th Cir. 2004) (“Issues not raised in the opening

brief are deemed abandoned or waived.” (quotation marks omitted)).

Roark’s failure to make this argument on direct appeal would normally bar him

from raising it in a § 2255 motion. See United States v. Cook, 997 F.2d 1312, 1320 (10th

Cir. 1993) (“Section 2255 motions are not available to test the legality of matters which

should have been raised on direct appeal.”). But “because jurisdictional issues are never

waived and can be raised on collateral attack,” we address the merits of whether the

government had Article III standing to prosecute Roark. Id.

II. Discussion

Article III, § 2, of the United States Constitution extends the “judicial Power . . . to

all Cases, in Law and Equity, arising under . . . the Laws of the United States,” and “to

Controversies to which the United States shall be a Party . . . .” U.S. Const. art. III, § 2.

“Standing to sue is part of the common understanding of what it takes to make a

justiciable case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998). “To

show that he has Article III standing, a plaintiff must demonstrate three elements: injury

the district court . . . , and [his] appellate position has not been even minimally supported by legal argument or authority.” (internal citations omitted)). 4 Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 5

in fact, traceability, and redressability.” S. Utah Wilderness All. v. Off. of Surface Mining

Reclamation & Enf’t, 620 F.3d 1227, 1233 (10th Cir. 2010).

Roark argues the government did not have standing to prosecute him because it

did not suffer an injury in fact from his conduct. He explains that “[d]uring testimony,

the witness D.R. stated that there was only one injured party and the [government] was/is

not that party.” Aplt. Br. at 1.

Even with the benefit of our liberal review, Roark’s argument is baseless. “It is

beyond doubt that [a criminal] complaint asserts an injury to the United States—[]the

injury to its sovereignty arising from violation of its laws . . . suffices to support a

criminal lawsuit by the Government . . . .” Vt. Agency for Nat. Res. v. United States ex

rel. Stevens, 529 U.S. 765, 771 (2000). See also United States v. Horner, 769 F. App’x

528, 532 n.5 (10th Cir. 2019) (“A violation of its laws injures the United States’

sovereignty, which ‘suffices to support a criminal lawsuit by the Government.’” (quoting

Vt. Agency for Nat. Res., 529 U.S. at 771)). “Article III cannot sensibly be read to

prohibit the United States from vindicating its sovereign interests in its own courts.”

Edward Hartnett, The Standing of the United States: How Criminal Prosecutions Show

That Standing Doctrine Is Looking for Answers in All the Wrong Places, 97 Mich. L.

Rev. 2239, 2249 (1999); see also Thomas Lee, The Standing of Qui Tam Relators Under

the False Claims Act, 57 U. Chi. L. Rev. 543, 569 (1990) (“The government certainly has

standing in criminal cases . . . .”).

Other courts have reached the same inevitable conclusion. See, e.g., United States

v. Yarbrough, 452 F. App’x 186, 189 (3d Cir. 2011) (“Yarbrough contends that the

5 Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 6

Government lacked standing because it failed to allege an injury in fact . . . . The

Government doubtlessly suffers an ‘injury in fact’ when a defendant violates its criminal

laws.” (internal citations omitted)); United States v. Daniels, 48 F. App’x 409, 418 (3d

Cir. 2002) (“As sovereign, the United States has standing to prosecute violations of valid

criminal statutes.”); Thomas v. United States, No. 18-2772, 2020 WL 1243803, at *12

(S.D.N.Y. Mar. 16, 2020) (“Thomas seeks to import the elements of Constitutional

standing, which have been discussed at length in civil cases, into the context of a criminal

prosecution. But these are not the elements that courts consider in assessing whether the

Government has standing, or whether a court has jurisdiction over a criminal case.”).

The government charged Roark with violating its criminal statutes—18 U.S.C.

§ 2244(a)(5) and 18 U.S.C. § 113(a)(1). In arguing that the government did not suffer an

injury in fact, Roark is mistaken to focus only on the harm he caused the victim. “A

federal criminal prosecution is not designed to remedy the injury to any particular victim,

but rather to remedy an injury done to the community.” Hartnett, The Standing of the

United States, supra, at 2248. The government under its sovereign authority thus had

standing to prosecute Roark and “vindicate the general public interest in compliance with

the law.” Id. As a result, no reasonable jurist could find the district court’s rejection of

Roark’s standing argument “debatable or wrong.” Slack, 529 U.S. at 484.

6 Appellate Case: 25-5169 Document: 17 Date Filed: 03/27/2026 Page: 7

III. Conclusion

Because Roark’s arguments lack merit, we deny his application for a COA and

dismiss this matter. We therefore also deny his motion for an emergency hearing as

moot.

Entered for the Court

Timothy M. Tymkovich Circuit Judge