United States v. Rogers

Opinion

Appellate Case: 24-3075 Document: 010111090658 Date Filed: 08/06/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 6, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-3075 (D.C. No. 6:13-CV-01448-JTM & RAYMOND L. ROGERS, 6:10-CR-10186-JWB-1 (D. Kan.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before PHILLIPS, BRISCOE, and CARSON, Circuit Judges. _________________________________

Defendant Raymond Rogers seeks a certificate of appealability (COA) in order to

challenge the district court’s denial of his motion to alter or amend a judgment pursuant

to Federal Rule of Civil Procedure 59(e) and his motion to amend his Rule 59(e) motion.

We deny a COA and dismiss this matter.

I

In December 2011, Mr. Rogers was convicted by a jury of bank robbery, in

violation of 18 U.S.C. § 2113(a), brandishing a firearm during the robbery, in violation of

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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: 24-3075 Document: 010111090658 Date Filed: 08/06/2024 Page: 2

18 U.S.C. § 924(c)(1)(A), and possessing a firearm after a felony conviction, in violation

of 18 U.S.C. § 922(g). He was sentenced to a total term of imprisonment of 234 months.

Mr. Rogers filed a direct appeal challenging his convictions and sentence. This

court rejected his arguments and affirmed. See United States v. Rogers, No. 12-3125,

520 F. App’x 727 (10th Cir. Apr. 5, 2013).

In December 2013, Mr. Rogers filed a pro se motion to vacate, set aside, or correct

a sentence under 28 U.S.C. § 2255 asserting numerous claims of ineffective assistance of

trial and appellate counsel. He also filed a related pro se motion for summary judgment

that addressed three claims of ineffective assistance of counsel that were asserted in the

§ 2255 motion. In December 2014, the district court denied both motions and declined to

issue Mr. Rogers a COA. In doing so, the district court concluded that all of Mr. Rogers’

claims of ineffective assistance of counsel lacked merit. Mr. Rogers sought and was

denied a COA from this court. See United States v. Rogers, No. 15-3013, 599 F. App’x

850 (10th Cir. 2015).

Since the conclusion of his initial § 2255 proceedings, Mr. Rogers has tried and

failed multiple times to seek leave from this court to file a second or successive § 2255

motion. He has also tried and failed multiple times to obtain a COA to appeal the district

court’s December 2014 judgment.

On April 15, 2024, Mr. Rogers filed a pro se motion to alter or amend the district

court’s December 2014 judgment pursuant to Federal Rule of Civil Procedure 59(e). He

argued that the district court committed “clear legal error of controlling law” in denying

2 Appellate Case: 24-3075 Document: 010111090658 Date Filed: 08/06/2024 Page: 3

him a COA. R. vol. II at 113. He subsequently filed a pro se motion to amend a

Rule 59(e) motion pursuant to Federal Rule of Civil Procedure 15(c)(1)(B).

On May 15, 2024, the district court issued a memorandum and order denying

Mr. Rogers’ pro se motions. In doing so, the district court noted that “Rule 59(e) permits

parties to file a motion to alter or amend a judgment within 28 days of its filing.” Id.

at 145 (emphasis in original). The district court in turn noted that Mr. Rogers was

“attempting to amend/alter a judgment from 2014—well beyond the 28-day time period.”

Id. The district court concluded that Mr. Rogers was improperly relying on Rule 59(e)

and denied that motion. The district court in turn denied Mr. Rogers’ motion to amend

his Rule 59(e) motion. The district court noted that, to the extent Mr. Rogers was seeking

to amend a Rule 59(e) motion from 2014, the record established that Mr. Roger “never

filed a Rule 59(e) motion” in December 2014. Id. at 146. The district court also noted

that, to the extent Mr. Rogers sought to amend his April 15, 2024 Rule 59(e) motion,

there was no basis to do so because the Rule 59(e) motion was untimely.

Mr. Rogers filed a notice of appeal and has since filed an application for COA

with this court.

II

Because the district court resolved Mr. Rogers’ motions on procedural grounds, he

must, in order to obtain a COA, show “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). We conclude he has failed to make this showing.

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As the district court correctly noted, a motion to alter or amend the judgment

pursuant to Rule 59(e) is timely only if filed “no later than 28 days after entry of

judgment.” Fed. R. Civ. P. 59(e). Here, Mr. Rogers’ Rule 59(e) motion was filed more

than nine years after the entry of the district court’s judgment in his original § 2255

proceeding. Thus, jurists of reason could not dispute the district court’s conclusion that

Mr. Rogers’ Rule 59(e) motion was untimely. And, for the same reason, jurists of reason

could not dispute the district court’s conclusion that there was no basis for allowing Mr.

Rogers to amend his Rule 59(e) motion.1

III

For these reasons, we deny Mr. Rogers a COA, deny his motion to proceed in

forma pauperis on appeal, and dismiss this matter.

Entered for the Court

Mary Beck Briscoe Circuit Judge

1 Mr. Rogers alleges in his application that he is also entitled to a COA in order to challenge the district court’s denial of his original § 2255 motion. That question, however, was long ago decided against Mr. Rogers and is not properly at issue in this matter. 4