United States v. Askew

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LEON HENDERSON ASKEW,

Defendant - Appellant.

No. 19-1453
(D.C. No.1:11-CR-00184-WJM-1)
(D. Colo.)
_________________________________
ORDER
*

_________________________________
Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
_________________________________
After a conviction on drug-and-gun charges,
1
Mr. Leon Askew
unsuccessfully moved to vacate his sentence. He then filed two requests for
a “Franks hearing,” which is a hearing on the veracity of an affidavit
submitted in order to obtain a warrant. United States v. Kennedy, 131 F.3d
1371, 1376 (10th Cir. 1997). The district court denied both requests, and
Mr. Askew wants to appeal the second denial of a Franks hearing.

*
This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But the
order and judgment may be cited for its persuasive value if otherwise
appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
1
See 18 U.S.C. § 922(g)(i), § 924(c)(1)(A); 21 U.S.C. § 841(a)(1),
(b)(1)(C).

FILED
United States Court of Appeals
Tenth Circuit

July 17, 2020

Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-1453 Document: 010110378517 Date Filed: 07/17/2020 Page: 1

2

To appeal, Mr. Askew needs a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B). We can issue the certificate only if Mr. Askew’s appellate
argument is reasonably debatable. Laurson v. Leyba, 507 F.3d 1230, 1232
(10th Cir. 2007).
In our view, Mr. Askew fails to satisfy this standard. He argues that
the district court should have granted his second request for a Franks
hearing. If this argument is proven, it could support vacatur of the sentence
under 28 U.S.C. § 2255. But Mr. Askew has already filed a § 2255 motion
and obtained a ruling on the merits. So any new § 2255 motion would be
second or successive, and the district court would lack jurisdiction in the
absence of authorization to file a second-or-successive § 2255 motion. In
re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Mr. Askew hasn’t stated any grounds for authorization. 28 U.S.C.
§ 2255(h). So his appellate argument isn’t reasonably debatable and we
can’t issue a certificate of appealability. Given the absence of a certificate
of appealability, we dismiss the appeal. 28 U.S.C. § 2253(c)(1)(B).
2

Entered for the Court

Robert E. Bacharach
Circuit Judge

2
We grant leave to proceed in forma pauperis.

Appellate Case: 19-1453 Document: 010110378517 Date Filed: 07/17/2020 Page: 2