United States v. Rogers

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 2, 2023
• Docket: 22-3269
• Status: Unpublished

Opinion

Appellate Case: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 2, 2023 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-3269 (D.C. Nos. 6:19-CV-01321-JWB & RAYMOND L. ROGERS, 6:10-CR-10186-JWB-1) (D. Kan.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, KELLY, and EID, Circuit Judges. _________________________________

A federal jury convicted Raymond L. Rogers of bank robbery and related

firearms offenses, and the district court imposed a 234-month prison sentence. This

court affirmed. See United States v. Rogers, 520 F. App’x 727, 728 (10th Cir. 2013).

Rogers then brought a 28 U.S.C. § 2255 motion claiming ineffective assistance of

counsel. The district court denied relief and we denied a certificate of appealability

(COA). See United States v. Rogers, 599 F. App’x 850, 851 (10th Cir. 2015).

Rogers has since filed other motions in the district court seeking to overturn

his conviction, including the motion that gives rise to this proceeding. Specifically,

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 2

in October 2022, Rogers filed a motion arguing the district court did not have

jurisdiction to try and convict him because, in his view, certain pretrial proceedings

effectively erased the indictment. As authority for such a motion, Rogers invoked

Federal Rule of Criminal Procedure 12(b)(2), which reads, “A motion that the court

lacks jurisdiction may be made at any time while the case is pending.”

The district court dismissed Rogers’s motion for lack of jurisdiction, deeming

it to be, in effect, an unauthorized successive § 2255 motion. Rogers now moves for

a COA to appeal that dismissal. To merit a COA, he “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). And he

must make an extra showing in this circumstance because the district court resolved

his motion on a procedural basis, namely, lack of jurisdiction. So he must also show

that “jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Id.

Rogers argues that the district court should not have recharacterized his Rule

12(b)(2) motion as a § 2255 motion without giving him notice and an opportunity to

withdraw it. But that is the procedure this court requires if the pleading in question

would be deemed the movant’s first § 2255 motion. See United States v. Kelly,

235 F.3d 1238, 1242 (10th Cir. 2000). That procedure does not apply if the movant

has already filed a § 2255 motion attacking the same judgment. See United States v.

Torres, 282 F.3d 1241, 1245–46 (10th Cir. 2002). As noted, Rogers is now well

beyond his first § 2255 motion. Accordingly, jurists of reason would not debate the

2 Appellate Case: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 3

correctness of the district court’s decision to dismiss for lack of jurisdiction. We

therefore deny a COA and dismiss this matter. We grant Rogers’s motion to proceed

without prepayment of costs or fees.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk