Rohlf v. Lumpkin

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   opinion should not be published and is not precedent except under the limited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