United States of America v. Kevin Tommie Hall

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN TOMMIE HALL,
Defendant - Appellant.
No. 21-3200
(D.C. Nos. 2:16-CV-02845-KHV &
2:06-CR-20162-KHV-1)
(D. Kan.)
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before HOLMES, KELLY, and ROSSMAN, Circuit Judges.
_________________________________
Petitioner-Appellant Kevin Tommie Hall, a federal inmate appearing pro se,
seeks a Certificate of Appealability (COA) to appeal from the district court’s
overruling of his successive 28 U.S.C. § 2255 motion. United States v. Hall, No. 06-
cr-20162, 2021 WL 3722266 (D. Kan. Aug. 23, 2021). We previously authorized
this motion “limited to challenges to his § 924(c) conviction and sentence and to the
enhancement of his sentence under the ACCA.” Order at 4, In re Hall, No. 16-3214
(10th Cir. May 14, 2020). The district court rejected those challenges. On appeal,
Mr. Hall argues that no court has addressed his claim that the district court’s aiding
* This order is not binding precedent except under the doctrines of law of the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.
FILED
United States Court of Appeals
Tenth Circuit
March 11, 2022
Christopher M. Wolpert
Clerk of Court
Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 1

-- 1 of 3 --

2
and abetting instruction and verdict form were erroneous under Rosemond v. United
States, 572 U.S. 65 (2014).
To obtain a COA from this court, Mr. Hall must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where a claim has
been denied on the merits, the movant “must demonstrate that reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Where a claim has been
dismissed on procedural grounds, the movant must also demonstrate that the district
court’s procedural ruling was debatable. Id.
Here, the district court declined to consider the Rosemond claim on procedural
grounds, reasoning that this court’s authorization was limited to claims arising under
United States v. Davis, 139 S. Ct. 2319 (2019), and Johnson v. United States, 576
U.S. 591 (2015). Hall, 2021 WL 3722266, at *3. In the alternative, the district court
held that a Rosemond claim could not meet the requirements of 28 U.S.C.
§ 2255(h)(1) or (2) for allowing a successive § 2255 motion. Id. at *3–4. Mr. Hall’s
Rosemond claim has been addressed and found wanting, albeit in the context of
ineffective assistance of counsel and at times procedurally. See, e.g., United States
v. Hall, 772 F. App’x 762, 764–65 & n.2 (10th Cir. 2019) (unpublished). Regardless,
the district court’s conclusion that it is not within the scope of this court’s
authorization of a successive § 2255 motion is not reasonably debatable. A district
court lacks jurisdiction over successive § 2255 claims without this court’s
authorization. In re Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam).
Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 2

-- 2 of 3 --

3
We DENY a COA, DENY IFP, and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
Appellate Case: 21-3200 Document: 010110655730 Date Filed: 03/11/2022 Page: 3

-- 3 of 3 --