                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                     UNITED STATES COURT OF APPEALS                 May 4, 2009

                            FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                   Clerk of Court


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 08-3354
                                               (D.C. No. 2:93-CR-20069-JWL-1)
    DONALD ALTON HARPER,                                   (D. Kan.)

                Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, McKAY, and BRISCOE, Circuit Judges. **



         Donald Alton Harper, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal from the district court’s order

dismissing his motion for relief from judgment. We deny the request for a COA

and dismiss the appeal.




*
       This order is not binding precedent except under the doctrines of law of the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.
**
       After examining the application for a certificate of appealability and
appellate record, this panel has determined unanimously that oral argument would
not materially assist the determination of this matter. See Fed. R. App. P.
34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without
oral argument.
      Mr. Harper was convicted in 1994 of armed bank robbery and using or

carrying a firearm during the robbery. The motion at issue in this case

purportedly sought relief from Mr. Harper’s convictions pursuant to Federal Rules

of Criminal Procedure 48, 51, and 52(b) but the district court construed the

motion as a motion to vacate, set aside, or correct Mr. Harper’s sentence pursuant

to 28 U.S.C. § 2255. The district court noted that the current motion was

Mr. Harper’s seventh motion challenging the legality of his detention and that the

previous six motions were all denied. The district court noted further that in

order to file a successive § 2255 motion, Mr. Harper must seek authorization from

the court of appeals. The district court indicated that it had the option of

transferring the motion to this court or it could dismiss the motion. The district

court explained that Mr. Harper had previously been warned about filing frivolous

motions and that Mr. Harper’s current motion lacked merit and was not likely

filed in good faith. Because of this, the district court determined that it was not

in the interest of justice to transfer Mr. Harper’s motion to this court and it

dismissed the motion.

      In a recent opinion, this court warned Mr. Harper that he would be subject

to sanctions if he continued to file frivolous motions challenging the legality of

his detention. See United States v. Harper, 545 F.3d 1230, 1234 (10th Cir. 2008).

We conclude that the underlying motion filed by Mr. Harper was frivolous and

that Mr. Harper lacked a good faith basis to appeal from the district court’s

                                          -2-
dismissal of that motion. Accordingly, we DENY the request for a COA and

DISMISS the appeal. See 10th Cir. R. 46.5(D)(1) (providing for dismissal as

a sanction for filing a frivolous appeal).


                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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