                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 November 4, 2010
                                TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 10-6136
 v.                                                   (W.D. Oklahoma)
 EVERETT BERNARD ROBINSON,                    (D.C. Nos. 5:10-CV-00464-R and
                                                    5:07-CR-00072-R-1)
              Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Everett Bernard Robinson, appearing pro se, requests a certificate of

appealability (COA) to appeal the district court’s denial of his motion for relief

under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal

dismissal of § 2255 motion). Because each of the issues raised by Mr. Robinson

could have been raised on direct appeal, we deny his request for a COA and

dismiss this appeal.

I.    BACKGROUND

      Mr. Robinson was found guilty by a jury of possession of a firearm after

having been convicted of a felony. See United States v. Robinson, 304 F. App’x

746, 747 (10th Cir. 2008). We affirmed his conviction on direct appeal. See id.

at 748. The underlying facts are set forth in our Order and Judgment on
Mr. Robinson’s prior appeal and need not be repeated. In that appeal

Mr. Robinson argued:

      [T]he district court (1) erred in denying his motion to dismiss
      because the police officer lacked reasonable suspicion to detain him;
      (2) violated his Confrontation Clause rights by admitting a tape of a
      911 telephone call; and (3) erred in refusing to give his requested
      jury instruction on the theory of defense of another (which stated that
      Mr. Robinson could defeat the § 922(g) firearms charge if the
      evidence indicated that he was carrying the gun to protect someone
      else from death or serious bodily injury).

He also argued that “(4) the enhancement of his sentence under the Armed Career

Criminal Act violated his substantive due process rights because two of the prior

convictions occurred in 1971 and 1989.” Id. at 747.

      On May 6, 2010, Mr. Robinson filed a motion for relief under § 2255 in the

United States District Court for the Western District of Oklahoma. It alleged that

his conviction was tainted (1) by Officer Kennedy’s allegedly false material

statements in his police report, in the probable-cause affidavit, at the suppression

hearing, and at trial; (2) by the use of the unreliable information supplied by the

anonymous 911 caller or callers; (3) by the trial court’s application of a

subjective-reasonableness test rather than an objective-reasonableness test in

assessing the validity of the stop of Mr. Robinson; (4) by the denial of his right

under the Confrontation Clause to question under oath the 911 operator; (5) by

the trial court’s failure to assess his motion for acquittal under Fed. R. Crim. P.

29(b) in that it did not base its ruling on solely the evidence submitted at the time


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of the motion; and (6) by the violation of his rights under the Double Jeopardy

Clause when the trial court permitted the government to reopen its case after it

had rested.

      On May 12 the district court denied the § 2255 motion on the ground that

Mr. Robinson had not shown good cause for his failure to raise the same issues on

direct appeal. Mr. Robinson moved to reconsider, repeating the claims in his

§ 2255 motion and arguing that it was impossible for the court to “go over each

issue, order the record[,] review the issues raised, and deny the motion” during

the six days between the filing of his § 2255 motion and the court’s decision.

R. at 75. He also filed (1) a motion to disqualify the judge under 28 U.S.C.

§§ 144 and 455(a) and (2) an affidavit of bias. The affidavit asserted that the

district judge “exhibited extreme prejudice of [Mr. Robinson], and with negative

decisions affecting Constitutional rights, . . . made negative aspersions as to

[Mr. Robinson’s] character,” and “completely disregarded the law.” Id. at 84. It

further asserted that the judge “denied the Motion [under 28 U.S.C. § 2255] only

six days after it was filed,” so “[i]t [was] clear that [the judge] did not give

[Mr. Robinson] a fair and just chance to have the issues before an unbias Judge

who would obey the law and respect the United States Constitution.” Id. at 85

(emphasis omitted).

      The district court denied the motion to reconsider on the grounds (1) that

Mr. Robinson had raised “the same issues in the same manner as in his prior

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application for relief under 28 U.S.C. § 2255” and (2) that he “had not established

or alleged any basis for not raising the issues he seeks to raise on direct appeal.”

Id. at 87. The court further ruled that its ability to issue a decision within six

days of filing does not indicate bias or prejudice nor provide a basis for recusal

      Mr. Robinson later filed a motion to amend his motion for reconsideration.

It repeated the assertions in his first motion for reconsideration. The sole change

was in the first page, which stated that the new motion was filed under Fed. R.

Civ. P. 60(b)(3). The district court denied the motion.

II.   DISCUSSION

      In this court Mr. Robinson repeats the claims made in his § 2255 motion.

“A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). “Where a district court has rejected the constitutional claims on the

merits,” the prisoner “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). If the motion was denied on

procedural grounds, the applicant faces a double hurdle. Not only must the

applicant make a substantial showing of the denial of a constitutional right, but he

must also show “that jurists of reason would find it debatable . . . whether the

district court was correct in its procedural ruling.” Id. “Where a plain procedural

bar is present and the district court is correct to invoke it to dispose of the case, a

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reasonable jurist could not conclude either that the district court erred in

dismissing the [motion] or that the [movant] should be allowed to proceed

further.” Id.

       Mr. Robinson’s claims lack merit for essentially the reasons set forth in the

district court’s opinion. “[Section] 2255 is not available to test the legality of

matters which should have been raised on appeal.” United States v. Allen, 16

F.3d 377, 378 (10th Cir. 1994) (internal quotation marks omitted). To raise the

claims under § 2255, Mr. Robinson must “show cause and prejudice resulting

from the [procedural default].” United States v. Cook, 45 F.3d 388, 392 (10th

Cir. 1995). Mr. Robinson, however, has failed even to allege good cause for his

failure to raise his present claims on direct appeal. No reasonable jurist could

debate that the issues should have been resolved differently by the district court.

       Finally, it does not appear that Mr. Robinson is raising in this court his

claim that the district judge was biased. In any event, he has failed to establish

any disqualifying bias.

III.   CONCLUSION

       We DENY a COA and DISMISS the appeal. We GRANT Mr. Robinson’s

motion to proceed in forma pauperis. We DENY the “Motion for Request to File

a




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Supplemental Certificate of Appealability” as untimely and duplicative.



                                     ENTERED FOR THE COURT


                                     Harris L Hartz
                                     Circuit Judge




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