Case: 22-10038 Document: 00516428955 Page: 1 Date Filed: 08/11/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 11, 2022
No. 22-10038 Lyle W. Cayce
Clerk
Anthony Rohlf,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CV-200
Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Anthony Rohlf, Texas prisoner # 2089530, was convicted of
aggravated assault with a deadly weapon. He now moves for a certificate of
appealability (COA) to appeal the district court’s denial of his Federal Rule
of Civil Procedure 60(b) motion, in which he alleged the judgment denying
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 22-10038 Document: 00516428955 Page: 2 Date Filed: 08/11/2022
No. 22-10038
his 28 U.S.C. § 2254 petition was the result of fraud, misrepresentation, and
misconduct by his trial counsel and the State’s attorney.
The district court rejected Rohlf’s Rule 60(b) motion on the merits.
However, the court had no jurisdiction to consider his motion because it
constituted a successive § 2254 application, and Rohlf had not obtained
authorization to proceed from this court. See Gonzalez v. Crosby, 545 U.S.
524, 530-32 (2005); see also Adams v. Thaler, 679 F.3d 312, 321-22 (5th Cir.
2012); 28 U.S.C. § 2244(b)(3)(A). Although Rohlf purported to rely on
fraud on the court pursuant to Rule 60(b)(3), the underlying claim was raised
in his § 2254 petition. Accordingly, Rohlf’s request for a COA with respect
to the denial of Rule 60(b) relief is DENIED as moot, the district court’s
order denying relief on the Rule 60(b) motion is VACATED, and the case
is REMANDED with instructions to dismiss the motion for lack of
jurisdiction. See Davis v. Sumlin, 999 F.3d 278, 279-80 (5th Cir. 2021).
2