FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 13, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-5082
(D.C. Nos. 4:17-CV-00462-CVE-FHM &
JAMES DAVID THORNBRUGH, 4:89-CR-00067-CVE-1)
(N.D. Okla.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY
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Before LUCERO, KELLY, and MORITZ, Circuit Judges.
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James David Thornbrugh, a federal prisoner appearing pro se, has filed a notice of
appeal from the district court’s order dismissing his “Motion to Vacate, Set Aside or
Correct a Sentence Pursuant to Title 28 U.S.C. § 2255 Second-In-Time by a Person in
Federal Custody and/or Federal Civil Rule 60(b) (5) & (6),” as an unauthorized second or
successive § 2255 petition and dismissing it for lack of jurisdiction. We dismiss the
appeal.
Thornbrugh filed a timely notice of appeal from the above-mentioned district court
order, which is Appeal No. 18-5082. At the same time, Thornbrugh filed a notice of
This order is not binding precedent except under the doctrines of law of the case,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.
appeal from the district court order that authorized the government to withdraw payments
from his prison trust account, which is Appeal No. 18-5083. This order concerns only
Appeal No. 18-5082.
On October 9, 2018, Thornbrugh filed a combined opening brief in both appeals.
The brief, however, never mentions the district court’s order that denied his motion as
second or successive; instead, the brief is confined exclusively to the court’s order
regarding the withdrawal of payments from his prison trust account.
“Although we liberally construe pro se filings, we do not assume the role of
advocate.” Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008) (internal quotation
marks omitted). Indeed, a pro se litigant must “comply with the fundamental
requirements of the Federal Rules of . . . Appellate Procedure.” Id. (internal quotation
marks omitted). One of those fundamental requirements is that a party actually make an
argument in his opening brief. See, e.g., Fed. R. App. P. 28(a)(8)(A). Therefore, where a
party fails to make “any argument on the merits of the claims involved, we deem them
waived under the general rule that even issues designated for review are lost if they are
not actually argued in the party’s brief.” Phillips v. Calhoun, 956 F.2d 949, 954 (10th
Cir. 1992). Thornbrugh’s brief makes no contentions regarding the district court’s
jurisdictional dismissal of his unauthorized successive § 2255 motion.
The appeal is dismissed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
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