United States v. Rogers

Opinion

Appellate Case: 23-3015 Document: 010110996296 Date Filed: 02/07/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 7, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-3015 (D.C. No. 6:13-CV-01448-JTM RAYMOND L. ROGERS, & 6:10-CR10186-JWB-1) (D. Kan.) Defendant - Appellant. _________________________________

ORDER AND JUDGMENT * _________________________________

Before McHUGH, MURPHY, and CARSON, Circuit Judges. _________________________________

Petitioner Raymond Rogers, appearing pro se, seeks to appeal the district court’s

denial of a certificate of appealability (“COA”). For the reasons stated below, we dismiss

this appeal. We also deny Defendant’s request to proceed in forma pauperis.

I.

In December 2011, a jury convicted Petitioner of bank robbery, possessing and

brandishing a firearm in the furtherance of a violent crime, and being a felon in

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 23-3015 Document: 010110996296 Date Filed: 02/07/2024 Page: 2

possession of a firearm. We affirmed. United States v. Rogers, 520 F. App’x 727 (10th

Cir. 2013) (unpublished). In 2013, Petitioner brought a 28 U.S.C. § 2255 motion

claiming ineffective assistance of counsel. The district court denied this motion. In

2014, Petitioner timely sought a COA to appeal the district court’s denial of his § 2255

motion, which we denied. United States v. Rogers, 599 F. App’x 850 (10th Cir. 2015)

(unpublished). Petitioner has tried and failed multiple times to seek leave from this court

to file a second or successive § 2255 motion.

Relevant here, on December 16, 2022, Petitioner moved for leave to amend his

2014 COA for his original § 2255 motion. The district court denied the motion for leave

to amend. In a text entry order, the district court also denied a COA for the motion for

leave to amend his 2014 COA. Petitioner now seeks to appeal the district court’s denial

of his COA for the motion for leave to amend.

II.

It is well-settled that we do not have jurisdiction to review the district court’s

denial of a COA. Under Federal Rule of Appellate Procedure 22(b)(1), “[i]f the district

judge has denied the certificate, the applicant may request a circuit judge to issue it.”

Here, Petitioner does not seek a COA from this Court, and instead, appeals the district

court’s denial of his COA. Petitioner argues that the district court “committed an error of

law when it denied [him] a COA” because the district court entered a text entry order and

“failed to apply the correct COA determination standard.” As discussed above, we do not

have jurisdiction to review the district court’s denial of his COA and, therefore, dismiss

it.

2 Appellate Case: 23-3015 Document: 010110996296 Date Filed: 02/07/2024 Page: 3

We also deny Petitioner’s in forma pauperis request because he failed to show the

existence of a reasoned, nonfrivolous argument on the facts in support of the issue he

raised on appeal. See DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).

We DISMISS this appeal and DENY Petitioner’s motion to proceed in forma

pauperis. We DENY Petitioner’s motion to expedite as MOOT.

APPEAL DISMISSED.

Entered for the Court

Joel M. Carson III Circuit Judge