United States v. Rogers

FILED
United States Court of Appeals
Tenth Circuit
April 17, 2015
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 15-3013
(D.C. Nos. 6:13-CV-01448-JTM &
RAYMOND L. ROGERS, 6:10-CR-10186-JTM-1)
(D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
Raymond Rogers was convicted by a jury of robbing a bank, brandishing a
firearm in the process, and being a felon in possession of a firearm. For these
federal crimes, the district court sentenced him to 234 months in prison. After
this court affirmed his sentence on direct appeal, see United States v. Rogers, 520
F. App’x 727 (10th Cir. 2013), Mr. Rogers brought a 28 U.S.C. § 2255 motion to
vacate his sentence. The district court dismissed the motion, concluding that his
ineffective assistance of counsel claims lacked merit. Mr. Rogers now seeks from
*
This order is not binding precedent except under the doctrines of law of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.
us a certificate of appealability in order to challenge the district court’s denial of
his motion.
By statute, we may issue a COA only if the petitioner first makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). Under this standard, an applicant must show “that reasonable
jurists could debate whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues presented ‘were
adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
Because Mr. Rogers proceeds in this court pro se, we review his pleadings with
special solicitude.
Even so, we discern no grounds on which we might grant a COA. By way
of example, Mr. Rogers claims that his trial counsel should have challenged his
sentence on the basis of United States v. Alleyne, 133 S. Ct. 2151 (2013). But
Alleyne wasn’t decided until after Mr. Rogers’s sentencing, we have held that
Alleyne doesn’t apply retroactively on collateral review, and we have held that
counsel does not act deficiently by failing to anticipate future legal developments.
See In re Payne, 733 F.3d 1027 (10th Cir. 2013); Bullock v. Carver, 297 F.3d
1036, 1052 (10th Cir. 2002). To the extent Mr. Rogers now claims his appellate
counsel should have presented an Alleyne argument on direct appeal, Mr. Rogers
didn’t present this argument in his habeas petition or supporting brief and it was
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therefore forfeited. In any event, we note that Alleyne wasn’t decided until after
the decision in his direct appeal. Separately, Mr. Rogers claims his counsel
should’ve filed a motion to suppress physical evidence found in an apartment that
he attempted to hide in after fleeing from the bank robbery. But he lacked
standing to challenge the search because he wasn’t an overnight or social guest.
See United States v. Poe, 556 F.3d 1113, 1122 (10th Cir. 2009). The remainder of
Mr. Rogers’s attacks on his counsel’s performance fail for similar reasons, all of
which are amply detailed in the district court’s careful 25-page opinion whose
analysis we endorse and see no profit in repeating.
The application for a COA and the motion to proceed in forma pauperis are
denied and the appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
.
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