Robinson v. Kastner , 577 F. App'x 896 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 7, 2014
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
RUSSELL E. ROBINSON,
Petitioner - Appellant,
v. No. 14-6146
(D.C. No. 5:13-CV-01366-R)
PAUL KASTNER, Warden, Federal (W.D. Okla.)
Transfer Center,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Russell Robinson, a federal prisoner proceeding pro se, appeals from an
order of the United States District Court for the Western District of Oklahoma
*
This order and judgment is not binding precedent except under the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.
dismissing his 28 U.S.C. § 2241 habeas corpus petition for lack of jurisdiction.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, 1 this court affirms the
district court’s order of dismissal. 2
A federal jury in the District Court of the United States Virgin Islands
convicted Robinson of drug trafficking and money laundering offenses.
Robinson’s convictions were affirmed on direct appeal by the United States Court
of Appeals for the Third Circuit. United States v. Fleming, 287 F. App’x 150,
155 (3d Cir. 2008). Robinson’s subsequent motion to vacate, set aside, or correct
his sentence under 28 U.S.C. § 2255 was denied by the District Court of the
United States Virgin Islands. That same court likewise denied multiple
subsequent motions seeking postconviction relief. Most recently, the Third
Circuit denied Robinson’s request to file a second or successive § 2255 motion, a
request that is in all material respects identical to the arguments advanced by
Robinson in this court in support of his asserted entitlement to proceed under
§ 2241.
1
Because Robinson is a federal prisoner and is appealing the district court’s
resolution of a § 2241 petition, he need not obtain a certificate of appealability to
proceed on appeal. McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 810 n.1 (10th
Cir. 1997).
2
The district court referred Robinson’s § 2241 petition to a magistrate judge
for initial proceedings, pursuant to 28 U.S.C. § 636(b). The district court adopted
the magistrate judge’s Report and Recommendation in its entirety. Thus, this
court treats the magistrate judge’s Report and Recommendation as the final
dispositional order of the district court.
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Applying this court’s binding precedent, 3 the district court concluded the
claims Robinson sought to advance in his § 2241 petition did not fall within the
savings clause set out in 28 U.S.C. § 2255(e) and, accordingly, Robinson was not
entitled to proceed in a § 2241 petition. The district court’s conclusion in this
regard is undeniably correct. Accordingly, we AFFIRM the order of the district
court dismissing Robinson’s § 2241 petition for lack of jurisdiction for
substantially those reasons set out in the magistrate judge’s Report and
Recommendation dated June 18, 2014, and the district court order dated July 2,
2014. Furthermore, because the frivolous arguments advanced by Robinson on
appeal demonstrate an absence of good faith, this court DENIES his request to
proceed on appeal in forma pauperis. Robinson is, therefore, ordered to
immediately remit the entire unpaid balance of the appellate filing fee. See
DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
3
See, e.g., Prost v. Anderson, 636 F.3d 578, 584-86 (10th Cir. 2011); Brace
v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).
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