United States v. Thornbrugh

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 13, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-5082 (D.C. Nos. 4:17-CV-00462-CVE-FHM & JAMES DAVID THORNBRUGH, 4:89-CR-00067-CVE-1) (N.D. Okla.) Defendant - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY _________________________________

Before LUCERO, KELLY, and MORITZ, Circuit Judges. _________________________________

James David Thornbrugh, a federal prisoner appearing pro se, has filed a notice of

appeal from the district court’s order dismissing his “Motion to Vacate, Set Aside or

Correct a Sentence Pursuant to Title 28 U.S.C. § 2255 Second-In-Time by a Person in

Federal Custody and/or Federal Civil Rule 60(b) (5) & (6),” as an unauthorized second or

successive § 2255 petition and dismissing it for lack of jurisdiction. We dismiss the

appeal.

Thornbrugh filed a timely notice of appeal from the above-mentioned district court

order, which is Appeal No. 18-5082. At the same time, Thornbrugh filed a notice 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 This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. appeal from the district court order that authorized the government to withdraw payments

from his prison trust account, which is Appeal No. 18-5083. This order concerns only

Appeal No. 18-5082.

On October 9, 2018, Thornbrugh filed a combined opening brief in both appeals.

The brief, however, never mentions the district court’s order that denied his motion as

second or successive; instead, the brief is confined exclusively to the court’s order

regarding the withdrawal of payments from his prison trust account.

“Although we liberally construe pro se filings, we do not assume the role of

advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation

marks omitted). Indeed, a pro se litigant must “comply with the fundamental

requirements of the Federal Rules of . . . Appellate Procedure.” Id. (internal quotation

marks omitted). One of those fundamental requirements is that a party actually make an

argument in his opening brief. See, e.g., Fed. R. App. P. 28(a)(8)(A). Therefore, where a

party fails to make “any argument on the merits of the claims involved, we deem them

waived under the general rule that even issues designated for review are lost if they are

not actually argued in the party’s brief.” Phillips v. Calhoun, 956 F.2d 949, 954 (10th

Cir. 1992). Thornbrugh’s brief makes no contentions regarding the district court’s

jurisdictional dismissal of his unauthorized successive § 2255 motion.

The appeal is dismissed.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk 2