Opinion
10-10186-01-JWB
11-09-2022
UNITED STATES OF AMERICA, Plaintiff, v. RAYMOND L. ROGERS, Defendant.
MEMORANDUM AND ORDER
JOHN W. BROOMES UNITED STATES DISTRICT JUDGE
This matter is before the court on Defendant's motion to dismiss (Doc. 263) and motion for leave to appeal in forma pauperis (Doc. 264). For the reasons stated herein, the motion to dismiss is DISMISSED FOR LACK OF JURISDICTION and the motion for leave to appeal in forma pauperis is DENIED.
I. Background
Defendant was convicted by a jury of federal bank robbery and firearm offenses and was sentenced by this court in 2012 to 234 months imprisonment. (Doc. 120.) Defendant's current motion to dismiss (Doc. 263) argues this court lacked jurisdiction to prosecute him. Defendant has previously filed multiple motions to vacate his sentence under 28 U.S.C. § 2255 and the instant motion is another attempt to assert such a motion. See Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (filings are construed under § 2255 when they “collaterally attack the validity of a conviction and sentence.”) Section 2255(h) provides in part that a second or successive § 2255 motion must be certified by a panel of the appropriate court of appeals to contain certain newly discovered evidence or a new rule of constitutional law made retroactive by the Supreme Court. 28 U.S.C. § 2255(h). Absent such authorization, a district court has no jurisdiction to consider a second or successive § 2255 motion. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008). Defendant has not obtained such authorization. The court thus lacks jurisdiction to address the motion to dismiss.
Defendant's motion for leave to proceed in forma pauperis (Doc. 264) relates to Defendant's appeal of the denial of his request to vacate the Tenth Circuit's original mandate. See Doc. 258 (denying Defendant's motion to modify the Tenth Circuit's mandate); Doc. 262 (docketing Defendant's appeal of Doc. 258 as Tenth Circuit Appeal No. 22-3199); and Doc. 264 (referring to Appeal No. 22-3199). The court finds Defendant's appeal of Doc. 258 lacks any basis in law and is not taken in good faith, such that his motion to proceed in forma pauperis should be denied. See 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3).
II. Conclusion
Defendant's motion to dismiss (Doc. 263) is accordingly DISMISSED FOR LACK OF JURISDICTION. The court DENIES a certificate of appealability, as Defendant has made no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2).
Defendant's motion for leave to proceed in forma pauperis (Doc. 264) is DENIED. The clerk is directed to notify the Tenth Circuit Court of Appeals (Appeal No. 22-3199) of the denial of the foregoing motion. Fed. R. App. P. 24(a)(4).
IT IS SO ORDERED.