FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 4, 2009
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 08-3354
(D.C. No. 2:93-CR-20069-JWL-1)
DONALD ALTON HARPER, (D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, McKAY, and BRISCOE, Circuit Judges. **
Donald Alton Harper, a federal prisoner proceeding pro se, seeks a
certificate of appealability (COA) to appeal from the district court’s order
dismissing his motion for relief from judgment. We deny the request for a COA
and dismiss the appeal.
*
This order is not binding precedent except under the doctrines of law of the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.
**
After examining the application for a certificate of appealability and
appellate record, this panel has determined unanimously that oral argument would
not materially assist the determination of this matter. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
Mr. Harper was convicted in 1994 of armed bank robbery and using or
carrying a firearm during the robbery. The motion at issue in this case
purportedly sought relief from Mr. Harper’s convictions pursuant to Federal Rules
of Criminal Procedure 48, 51, and 52(b) but the district court construed the
motion as a motion to vacate, set aside, or correct Mr. Harper’s sentence pursuant
to 28 U.S.C. § 2255. The district court noted that the current motion was
Mr. Harper’s seventh motion challenging the legality of his detention and that the
previous six motions were all denied. The district court noted further that in
order to file a successive § 2255 motion, Mr. Harper must seek authorization from
the court of appeals. The district court indicated that it had the option of
transferring the motion to this court or it could dismiss the motion. The district
court explained that Mr. Harper had previously been warned about filing frivolous
motions and that Mr. Harper’s current motion lacked merit and was not likely
filed in good faith. Because of this, the district court determined that it was not
in the interest of justice to transfer Mr. Harper’s motion to this court and it
dismissed the motion.
In a recent opinion, this court warned Mr. Harper that he would be subject
to sanctions if he continued to file frivolous motions challenging the legality of
his detention. See United States v. Harper, 545 F.3d 1230, 1234 (10th Cir. 2008).
We conclude that the underlying motion filed by Mr. Harper was frivolous and
that Mr. Harper lacked a good faith basis to appeal from the district court’s
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dismissal of that motion. Accordingly, we DENY the request for a COA and
DISMISS the appeal. See 10th Cir. R. 46.5(D)(1) (providing for dismissal as
a sanction for filing a frivolous appeal).
Entered for the Court
Monroe G. McKay
Circuit Judge
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