Opinion
24-3057
04-16-2024
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RAYMOND L. ROGERS, Defendant-Appellant.
(D.C. Nos. 6:13-CV-01448-JTM &6:10-CR-10186-JWB-1) (D. Kan.)
Before McHUGH, CARSON, and FEDERICO, Circuit Judges.
ORDER
Petitioner Raymond L. Rogers seeks a certificate of appealability ("COA") to appeal the district court's December 9, 2014 order denying his Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. [See Cr. Dkt. No. 162].
I
In December 2011, a jury convicted Rogers of bank robbery, possessing and brandishing a firearm in the furtherance of a violent crime, and being a felon in possession of a firearm. This court affirmed. See United States v. Rogers, No. 12-3125, 520 Fed.Appx. 727 (10th Cir. 2013) (unpublished).
In 2013, Rogers brought a 28 U.S.C. § 2255 motion claiming ineffective assistance of counsel. On December 9, 2014, the district court denied Rogers' § 2255 motion and entered judgment by separate order. [Crim. Dkt. No. 162; Civ. Dkt. No. 1]. The district court twice denied Rogers a COA to appeal that order. [See Crim. Dkt. Nos. 162, 164]. Rogers sought a COA from this court, but this court likewise denied Rogers a COA to appeal the December 9, 2014 order. See United States v. Rogers, No. 15-3013, 599 Fed.Appx. 850 (10th Cir. 2015) (unpublished), cert. denied, 577 U.S. 891 (2015). Rogers has tried and failed multiple times to seek leave from this court to file a second or successive § 2255 motion.
In his most recent proceeding in this court, Rogers sought to appeal the district court's denial of a COA to appeal the district court's denial of Rogers' motion for leave to amend his 2014 COA application for his original § 2255 motion. See United States v. Rogers, No. 23-3015, 2024 WL 470551, at *1 (10th Cir. Feb. 7, 2024) (unpublished). This court held that it "[did] not have jurisdiction to review the district court's denial of a COA" and dismissed Rogers' appeal for lack of jurisdiction. Id.
Rogers then returned to district court and filed a third application for a COA to appeal the December 9, 2014 order [Cr. Dkt. No. 287], which the district court again denied [Cr. Dkt. No. 288]. Rogers again seeks a COA from this court to appeal the December 9, 2014 order.
II
Upon consideration of Rogers' filings, the district court docket, and the applicable law, the court dismisses the appeal for the reasons set forth below.
First, Rogers is not entitled to a second proceeding to consider whether to issue a COA of the same order for which this court has previously denied a COA. Cf. United States v. Mendes, 912 F.2d 434, 438 (10th Cir. 1990) (holding that criminal defendant is not entitled to second appeal of conviction). "Any other interpretation would undermine the doctrine of finality and lead to endless relitigation of issues previously resolved." Id.
Second, even if Rogers were entitled to again seek a COA from this court to appeal the district court's December 9, 2014 order, his notice of appeal is untimely. See Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1239 (10th Cir. 2006) ("This Court can exercise jurisdiction only if a notice of appeal is timely filed."); see also 28 U.S.C.
§ 2107(b); Fed. R. App. P. 4(a)(1)(B).
To appeal an adverse decision on a § 2255 motion, the notice of appeal must be filed within 60 days after entry of the decision. Fed. R. App. P. 4(a)(1)(B); U.S. v. Pinto, 1 F.3d 1069, 1070 (10th Cir. 1993). The district court entered final judgment denying Rogers' § 2255 motion on December 9, 2014. [Civ. Dkt. No. 1], and Rogers did not file any post-judgment motions that would serve to toll or extend the time he had to file a notice of appeal. Accordingly, Rogers' notice of intent to appeal was due on or before February 9, 2015. See Fed. R. App. P. 4(a)(1)(B) (notice of appeal in a civil case in which the United States is a defendant "must be filed . . . within 60 days after entry of the judgment or order appealed from"); Fed. R. App. P. 26(a)(1)(C)(stating that, if the last day of any time period specified in the Federal rules is a Saturday, Sunday, or legal holiday, "the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday").
However, this court did not receive Rogers' notice of appeal until April 12, 2024-more than nine years after it was due-and forwarded it to the district court on the day of receipt. [See Cr. Dkt. No. 290]; see also Fed. R. App. P. 4(d) (requiring the Clerk of this court to send to the district court any notice of appeal mistakenly filed in this court).
The court notes Rogers' argument in the district court that "28 U.S.C.S. § 2253 does not restrict the number of COA applications a defendant can file, nor does it set any jurisdictional time limitations for the filing of a COA application." [ECF No. 287 at 2]. Although § 2253 does not expressly address these issues, other applicable precedent and rules preclude a second attempt to obtain a COA to appeal the same order and set jurisdictional time limitations for the filing of a notice of appeal in a § 2255 case. See Mendes, 912 F.2d at 438; Rule 11(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. Indeed, Rule 11(b) expressly states that "Federal Rule of Appellate Procedure 4(a) governs the time to appeal an order [denying a § 2255 motion]," and requires "[a] timely notice of appeal [to] be filed" regardless whether the district court issues or denies a COA. See id. "A motion to reconsider a denial [of COA] [likewise] does not extend the time to appeal." See Rule 11(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts.
Although Rogers is proceeding pro se, he must still comply with the time requirements in the procedural rules. See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). This he failed to do. The time limit for Rogers to appeal the district court's December 9, 2014 order is long past, and "we are without jurisdiction under the facts of this case." Jenkins v. Burtzloff, 69 F.2d 460, 464 (10th Cir. 1995).
APPEAL DISMISSED.