United States v. Rogers ( 2023 )

Appellate Case: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 2, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 22-3269
(D.C. Nos. 6:19-CV-01321-JWB &
RAYMOND L. ROGERS, 6:10-CR-10186-JWB-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, KELLY, and EID, Circuit Judges.
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A federal jury convicted Raymond L. Rogers of bank robbery and related
firearms offenses, and the district court imposed a 234-month prison sentence. This
court affirmed. See United States v. Rogers, 520 F. App’x 727, 728 (10th Cir. 2013).
Rogers then brought a 28 U.S.C. § 2255 motion claiming ineffective assistance of
counsel. The district court denied relief and we denied a certificate of appealability
(COA). See United States v. Rogers, 599 F. App’x 850, 851 (10th Cir. 2015).
Rogers has since filed other motions in the district court seeking to overturn
his conviction, including the motion that gives rise to this proceeding. Specifically,
*
This order is not binding precedent except under the doctrines of law of the case,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: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 2
in October 2022, Rogers filed a motion arguing the district court did not have
jurisdiction to try and convict him because, in his view, certain pretrial proceedings
effectively erased the indictment. As authority for such a motion, Rogers invoked
Federal Rule of Criminal Procedure 12(b)(2), which reads, “A motion that the court
lacks jurisdiction may be made at any time while the case is pending.”
The district court dismissed Rogers’s motion for lack of jurisdiction, deeming
it to be, in effect, an unauthorized successive § 2255 motion. Rogers now moves for
a COA to appeal that dismissal. To merit a COA, he “must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). And he
must make an extra showing in this circumstance because the district court resolved
his motion on a procedural basis, namely, lack of jurisdiction. So he must also show
that “jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” Id.Rogers argues that the district court should not have recharacterized his Rule
12(b)(2) motion as a § 2255 motion without giving him notice and an opportunity to
withdraw it. But that is the procedure this court requires if the pleading in question
would be deemed the movant’s first § 2255 motion. See United States v. Kelly,
235 F.3d 1238, 1242 (10th Cir. 2000). That procedure does not apply if the movant
has already filed a § 2255 motion attacking the same judgment. See United States v.
Torres, 282 F.3d 1241, 1245–46 (10th Cir. 2002). As noted, Rogers is now well
beyond his first § 2255 motion. Accordingly, jurists of reason would not debate the
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Appellate Case: 22-3269 Document: 010110807229 Date Filed: 02/02/2023 Page: 3
correctness of the district court’s decision to dismiss for lack of jurisdiction. We
therefore deny a COA and dismiss this matter. We grant Rogers’s motion to proceed
without prepayment of costs or fees.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
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