CLD-058 and CLD-059                                            NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 15-2207 & 15-2208
                                      ___________

                            UNITED STATES OF AMERICA

                                             v.

                                  RICHARD KAPLAN,
                                                      Appellant
                       ____________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                (D.C. Crim. Nos. 1:07-cr-00329-001 & 1:08-00581-001)
                       District Judge: Honorable Joseph E. Irenas
                      ____________________________________

      Submitted for a Decision on the Issuance of a Certificate of Appealability and
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  November 19, 2015

              Before: FISHER, JORDAN and VANASKIE, Circuit Judges

                            (Opinion filed December 9, 2015)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Richard Kaplan appeals pro se from several orders denying his post-conviction

motions that he filed in two of his closed criminal cases. Because his appeals present no

substantial question, we will summarily affirm the District Court’s orders. We decline to

review Kaplan’s attempted appeal from the U.S. Department of Justice’s (“DOJ”)

response to his FOIA request.

                                             I.

       Kaplan is a federal prisoner who, in 2007, pleaded guilty to and was sentenced for

receiving corrupt payments in violation of 18 U.S.C. § 666(a)(1)(B) and (a)(2). He did

not file a direct appeal. Then, in 2008, Kaplan pleaded guilty to and was sentenced for

using an interstate facility and the mail in attempting to commit murder for hire in

violation of 18 U.S.C. § 1958(a). This Court dismissed Kaplan’s appeal by granting the

Government’s request to enforce an appeal waiver contained in his plea agreement. See

C.A. No. 10-1964. In 2013, Kaplan filed 28 U.S.C. § 2255 motions in both of his

criminal cases. The District Court dismissed the motions as untimely, and we denied

certificates of appealability in both cases. See C.A. Nos. 15-1958 & 13-4657.

       Then, in 2014 and 2015, Kaplan filed several nearly identical motions in his

closed criminal cases based on his allegations of conspiracies that occurred during and

after his convictions. In the case involving his 2007 conviction, Kaplan moved for: (a)

production of transcripts so he could litigate his § 2255 motion (ECF No. 28); (b)


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judgment of acquittal (ECF No. 29); (c) a criminal complaint to be filed against all of the

alleged conspirators (ECF No. 31), (d) an evidentiary hearing and transport to the hearing

(ECF No. 32); (e) a motion to recuse the District Judge (ECF No. 33); and (f) oral

argument on his motion to recuse (ECF No. 34).

       Similarly, in the case involving his 2008 conviction, Kaplan filed motions: (a) for

production of transcripts so he could litigate his § 2255 motion (ECF No. 55); (b) to

amend an exhibit to his § 2255 motion and for judgment of acquittal (ECF No. 56); (c)

for a criminal complaint to be filed against all of the alleged conspirators (ECF No. 57),

(d) for an evidentiary hearing and transport to the hearing (ECF No. 58); (e) to recuse the

District Judge (ECF No. 59); and (f) for transport and oral argument on his motion to

recuse (ECF No. 60).

       The District Court denied all of Kaplan’s motions in both of his cases on April 21,

2015. (ECF Nos. 36-39; ECF Nos. 61-64.) First, it denied as moot his motions for

transcripts for litigating his § 2255 motions, explaining that his petitions had already been

dismissed with prejudice. Second, the District Court denied Kaplan’s motions for an

order for the prosecutor’s office to file a criminal complaint against those government

officials and agencies who allegedly conspired against him, and an evidentiary hearing

for him to prove the civil conspiracy against him. The District Court explained that the

allegations seemed to refer to one Kaplan’s civil suits, which had already been dismissed


                                              3
for failure to state a claim for relief. Third, the District Court denied the motions to

recuse, noting that there was no open case from which it might recuse. In denying these

motions, the District Court also stated that Kaplan’s allegations of a conspiracy were

implausible.

       Additionally, in the case concerning Kaplan’s 2007 conviction, the District Court

denied his motion for judgment of acquittal that was based on his allegations that the

prosecutor committed unspecified Brady violations and was involved in a conspiracy, and

that his guilty plea was involuntary. The District Court denied the motion because all of

Kaplan’s assertions had already been raised and rejected in several of his other cases.

And finally, in the case concerning Kaplan’s 2008 conviction, the District Court denied

as futile his motion to amend his § 2255 motion to add an exhibit, which included a

motion for acquittal. The District Court explained that Kaplan’s § 2255 motions had

been dismissed as time-barred and that nothing in the exhibit would affect the timeliness

of the motions.

               Kaplan timely appealed, and his notices of appeal also attempt to directly

appeal from a response of the DOJ to his FOIA request for documents.

                                              II.

       We have carefully reviewed Kaplan’s filings, as did the District Court. We see no

reason for the District Court to have granted Kaplan any relief, and thus no basis to


                                              4
disturb the orders from which he appeals. Accordingly, we will summarily affirm. See

3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.

       Additionally, to the extent that Kaplan’s motions for an acquittal and for the

prosecutor to file a criminal complaint might be characterized as § 2255 motions, the

District Court’s dismissal of his previous § 2255 motions and our disposition of his

appeals therefrom precluded the District Court from considering such motions. See 28

U.S.C. §§ 2244(b)(3), 2255(h). Thus, the District Court would have been obligated to

dismiss the motions or transfer them to this Court to be treated as § 2244 applications for

leave to file additional § 2255 motions. See Robinson v. Johnson, 313 F.3d 128, 139-40

(3d Cir. 2002). We see no need to remand for such treatment because the District Court’s

disposition of those motions effectively prevented Kaplan from circumventing the gate-

keeping requirements. Further, to the extent that a certificate of appealability might be

required for him to appeal from those rulings, we deny one because there was no basis for

the District Court to have granted § 2255 relief.

       Finally, as to Kaplan’s request that we review the DOJ’s response to his FOIA

request, as a general rule we do not consider claims raised for the first time on appeal.

Gardiner v. Virgin Islands Water & Power Auth., 145 F.3d 635, 646-47 (3d Cir. 1998).

Kaplan has provided no reason to depart from this general policy, and we see no reason

to do so. Accordingly, we decline to review this aspect of Kaplan’s appeal.


                                              5
      We will thus summarily affirm the District Court’s orders. Kaplan’s motions that

are pending before this Court are denied.




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