                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                     UNITED STATES COURT OF APPEALS March 26, 2013
                                                              Elisabeth A. Shumaker
                                 TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 12-3301
 v.                                         (D.Ct. No. 6:07-CR-10045-JTM-1)
                                                         (D. Kan.)
 MARTIN A. WICKEN,

          Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Martin A. Wicken, a pro se litigant and federal inmate, appeals


      *
         This order is not binding precedent except under the doctrines of law of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.
the district court’s dismissal of his “Motion to Review Sentence, Pursuant to 18

U.S.C. § 3742(a)(1)(2),” which it construed as a second or successive motion for

relief under 28 U.S.C. § 2244. It also denied his later application for a certificate

of appealability. In appealing the district court’s dismissal of his motion, Mr.

Wicken seeks a certificate of appealability from this court. We deny Mr.

Wicken’s application for a certificate of appealability and dismiss his appeal.



                       I. Factual and Procedural Background

      On March 6, 2007, a federal grand jury issued an indictment charging Mr.

Wicken with unlawful possession with intent to distribute approximately 11.23

grams of a mixture or substance containing methamphetamine, in violation of 21

U.S.C. § 841(a)(1), and possession of a firearm and/or ammunition, in violation

of 18 U.S.C. § 922(g)(1). On May 21, 2007, Mr. Wicken pled guilty to the felony

offense of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) in

exchange for the government’s agreement not to file additional charges against

him. In pleading guilty, Mr. Wicken waived his right to appeal or collaterally

attack any matter in connection with his conviction and sentencing unless the

district court departed upward. He also stated he had sufficient time to discuss

the case, the evidence, and the plea agreement with his attorney and that he was

fully satisfied with the advice and representation provided by counsel. Following

his guilty plea, the district court determined Mr. Wicken’s plea was freely,

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voluntarily, and knowingly made. After determining Mr. Wicken qualified as a

career criminal for the purpose of calculating his sentence, the district court

imposed a sentence of 180 months imprisonment–at the low end of the 180- to

210-month United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)

range. In accord with the terms of his plea agreement waiver, Mr. Wicken did not

file a direct appeal of his conviction and sentence.



      In 2008, Mr. Wicken filed a motion under 28 U.S.C. § 2255 to vacate, set

aside, or correct his sentence, which the district court dismissed; in 2009, he also

filed an application for a certificate of appealability, which it denied. On

December 17, 2009, after two orders granting Mr. Wicken extensions of time to

file his brief on appeal and petition for a certificate of appealability, this court

dismissed Mr. Wicken’s appeal for lack of prosecution after he failed to file

either type of pleading.



      Turning to the litigation involved in this appeal, on June 25, 2012, Mr.

Wicken filed the instant “Motion To Review Sentence, Pursuant to 18 U.S.C.

§ 3742(a)(1)(2),” claiming he did not qualify for career criminal status and

received ineffective assistance of counsel. The district court construed the motion

as a second or successive application under 28 U.S.C. § 2244 and dismissed it on

procedural, rather than substantive, grounds for lack of jurisdiction because: (1)

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the issues raised fell within the waiver contained in his plea agreement and he

failed to show a miscarriage of justice in its enforcement; and/or (2) he failed to

obtain the necessary authorization from this court to file a second or successive

motion in the district court. Thereafter, Mr. Wicken filed an application for a

certificate of appealability, which the district court denied because he failed to

show enforcement of the waiver in his plea agreement would result in a

miscarriage of justice, including that resolution of the issues raised would be

debatable among jurists, should be resolved differently, or deserve further

consideration. It also denied his motion for leave to proceed in forma pauperis as

moot.



                                   II. Discussion

        Mr. Wicken now appeals the district court’s dismissal of the instant motion

and requests a certificate of appealability. In identifying the issues for appeal, he

presents incoherent and rambling arguments that he: (1) does not qualify as an

armed career offender; (2) received ineffective assistance of counsel from all four

of his attorneys; and (3) had his constitutional rights violated because the officer

who provided the affidavit supporting his arrest warrant allegedly disregarded the

truth and otherwise committed perjury and obstructed justice. While he claims he

does not qualify as a career criminal, he does not provide any explanation as to

how his prior crimes, of which there is a vast multitude, are not sufficient to

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qualify him for such status. He also suggests he received ineffective assistance of

counsel because his classification as an armed career criminal “drastically

increased his punishment for his offense,” so that the outcome of his sentence

would have been different if his counsel had objected to such a classification. In

making these arguments, however, he does not address the district court’s

procedural reasons for dismissing his motion, including that he failed to show an

exemption from his plea waiver, obtain a certificate of appealability, or otherwise

meet the criteria necessary for issuance of a certificate of appealability. The

government filed a notice of its intention not to file a response brief.



       In order to obtain a certificate of appealability, Mr. Wicken must make a

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

§ 2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). To

achieve this, he must show “that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right and ...

whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at

484.



       We have carefully reviewed the record before us and determine that nothing

in Mr. Wicken’s pleadings on appeal takes issue with the district court’s

procedural bases for dismissing his motion or later denying him a certificate of

                                           -5-
appealability. Indeed, he presents no argument exempting him from the plea

waiver he previously stipulated to and signed, in which he waived his right to

appeal or collaterally attack his sentence, nor does he make any coherent

argument for the purpose of showing the required “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Slack, 529 U.S.

at 483-84. Moreover, even if we considered the substantive grounds for his

appeal, the record soundly supports his career criminal status, on which he also

bases his ineffective assistance of counsel claim.



      Having failed to make such a showing, Mr. Wicken is not entitled to a

certificate of appealability for the purpose of filing a second or successive motion

to vacate, set aside, or correct his sentence. Moreover, because his arguments fail

to address the district court’s reasons for dismissal of his motion, do not provide

discussion of how he has met the requisite showing for a certificate of

appealability, or are otherwise frivolous, we also decline to approve his

application to proceed in forma pauperis and will not expend further judicial

resources in discussing this appeal. We caution Mr. Wicken that future frivolous

appeals on this or any other matter may result in summary disposition without

discussion and/or an order requiring him to show cause why this court should not




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impose both appellate filing restrictions and sanctions. 1 We further caution Mr.

Wicken the fact he is a pro se litigant does not prohibit the court from imposing

such sanctions on him. See Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir.

2003).



                                  III. Conclusion

         For the foregoing reasons, we DENY Mr. Wicken a certificate of

appealability and DISMISS this appeal. We also DENY his application to

proceed in forma pauperis.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge

         1
          “The right of access to the courts is neither absolute nor unconditional,
and there is no constitutional right of access to the courts to prosecute an action
that is frivolous or malicious.” Winslow v. Hunter (In re Winslow), 17 F.3d 314,
315 (10th Cir. 1994) (internal quotation marks omitted). We possess inherent
authority “to regulate the activities of abusive litigants by imposing carefully
tailored restrictions under the appropriate circumstances.” Tripati v. Beaman, 878
F.2d 351, 352 (10th Cir. 1989). We have long held that where a party has
engaged in a pattern of litigation activity which is manifestly abusive, restrictions
are appropriate, but only after notice and an opportunity to respond are given.
See Werner v. Utah, 32 F.3d 1446, 1447-48 (10th Cir. 1994); In re Winslow, 17
F.3d at 315. We may impose filing restrictions based on our inherent power to
regulate federal dockets, promote judicial efficiency, and deter frivolous filings.
See Van Sickle v. Holloway, 791 F.2d 1431, 1437 (10th Cir. 1986). Moreover,
Rule 38 of the Federal Rules of Appellate Procedure allows this court to award
damages as a sanction for a frivolous appeal.


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