UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

DEANDRE ANTONIO HOPKINS, 

 Defendant - Appellant. 

No. 19-5070 

(D.C. Nos. 4:16-CV-00649-JHP-FHM and 

4:12-CR-00050-JHP-3) 

(N.D. Okla.) 

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ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before MATHESON, McKAY, and BACHARACH, Circuit Judges. 

_________________________________ 

Appellant Deandre Hopkins seeks a certificate of appealability to appeal the 

district court’s denial of his Fed. R. Civ. P. 60(b) motion, in which he sought 

reconsideration of the court’s previous denial of his 28 U.S.C. § 2255 habeas motion. 

In 2013, Appellant was convicted after a jury trial on multiple counts—including 

for using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)—

stemming from his role in a series of armed robberies in Tulsa, Oklahoma, and was 

sentenced to 544 months in prison. We later affirmed Appellant’s convictions. See 

United States v. Hopkins, 608 F. App’x 637 (10th Cir. 2015). 

 

 This order is not binding precedent except under the doctrines of law of the case, 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 

December 23, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

In 2016, Appellant filed his habeas motion, arguing his appellate counsel was 

ineffective for failing to challenge his § 924(c) conviction under Rosemond v. United 

States, 572 U.S. 65 (2014), which had been decided during the pendency of Appellant’s 

appeal.1

 Rosemond held that a defendant cannot be convicted of aiding and abetting a 

§ 924(c) violation unless he has advance knowledge one of his confederates will carry a 

firearm and that a trial court errs by giving an aiding-and-abetting jury instruction that 

fails to account for the advance-knowledge requirement. Id. at 77–78, 81. Appellant 

argued that his § 924(c) conviction was premised on aiding-and-abetting liability; that, 

under Rosemond, the trial court had given an erroneous instruction; and that appellate 

counsel’s failure to raise the Rosemond issue amounted to ineffective assistance. 

The district court acknowledged that Appellant “could not be convicted for aiding 

and abetting a § 924(c) violation under Rosemond.” (Suppl. R. at 80.) Nevertheless, the 

court concluded that Appellant “was properly convicted of the § 924(c) violation under 

Pinkerton v. United States, 328 U.S. 640 (1946),” which holds that, “[d]uring the 

existence of a conspiracy, each member of the conspiracy is legally responsible for the 

[reasonably foreseeable] crimes of his fellow conspirators committed in furtherance of 

the conspiracy.” (Id. (internal citations omitted)). Given the facts of the case, the court 

determined “it was entirely foreseeable that one or more of [Appellant]’s accomplices” 

 1

 Appellant’s initial habeas motion included 21 separate claims, and he later 

supplemented the motion with three additional grounds for relief, including the 

Rosemond issue. The district court rejected the 21 claims Appellant initially raised 

because they were conclusory in nature and devoid of factual averments and rejected the 

other two grounds for relief on the merits. See United States v. Fisher, 38 F.3d 1144, 

1147 (10th Cir. 1994). Appellant only seeks to raise the Rosemond issue on appeal. 
3 

would use a firearm during one of the robberies. (Id. at 14.) Thus, the court concluded, 

any Rosemond error was inconsequential, and appellate counsel’s failure to raise the issue 

on appeal did not deprive Appellant of effective assistance.2

 Accordingly, the court 

denied Appellant’s § 2255 motion. Appellant did not seek to appeal the denial. 

Nearly two years later, in 2019, Appellant filed a Rule 60(b) motion for relief from 

the district court’s denial of his § 2255 motion. He argued that his § 2255 proceeding 

was defective because the court, in assessing the Rosemond issue, “failed to observe and 

apply the correct and controlling” law, “resulting in the premature and incorrect 

termination of the § 2255” proceeding. (R. vol. VI at 35; see also id. at 36–37 (asserting 

that the court “used the wrong law,” resulting in a “defect in the integrity of the federal 

§ 2255 []procedure”).) In support, Appellant pointed to Tenth Circuit cases holding that 

a general jury verdict must be vacated where it is unclear whether the jury relied on an 

instruction or a theory of liability that is erroneous.3

 Appellant thus asked the court to 

“reopen the previous § 2255 proceedings” and to re-assess his Rosemond claim 

“observing and applying the correct circuit []law.” (Id. at 37.) 

 2 See United States v. Hill, 743 F. App’x 241, 244 (10th Cir. 2018) (explaining, in 

appeal by one of Appellant’s co-defendants, that, where “the jury was properly instructed 

on the requirements of Pinkerton co-conspirator liability,” “if the evidence was sufficient 

to convict [the defendant] of violating § 924(c) on a theory of Pinkerton co-conspirator 

liability, [the defendant] can’t show his attorney’s failure to challenge his conviction 

under Rosemond—which concerns only aiding and abetting—prejudiced him”). 

3 See generally United States v. Holly, 488 F.3d 1298, 1304–07 (10th Cir. 2007) 

(discussing availability of harmless-error analysis when the appellate court confronts “an 

instructional error on one of two independent alternative grounds for conviction”) 
4 

The district court summarily denied Appellant’s Rule 60(b) motion in a minute 

order and denied his subsequent motion for a COA. Appellant now seeks to challenge 

the denial of his Rule 60(b) motion.4

 

A prisoner seeking to appeal from the denial of a Rule 60(b) motion—regardless 

of whether it is a “true” Rule 60(b) motion—in a § 2255 proceeding must first obtain a 

COA. See United States v. Duran, 454 F. App’x 671, 674 (10th Cir. 2012). Ordinarily, 

if the district court denies a post-judgment motion on the merits, our inquiry focuses on 

whether or not the prisoner “‘demonstrated that reasonable jurists would find the district 

court’s assessment of the constitutional claims debatable or wrong.’” United States v. 

Springer, 875 F.3d 968, 972 (10th Cir. 2017) (brackets omitted) (quoting Slack v. 

McDaniel, 529 U.S. 473, 484 (2000)). However, we may also “deny a COA if there is a 

plain procedural bar to habeas relief, even though the district court did not rely on that 

bar.” Id. at 981. 

In evaluating the district court’s denial of a Rule 60(b) motion in a habeas case, 

“[o]ur first task . . . is to consider . . . the issues raised in the [Rule 60(b)] motion in order 

to determine whether it represents a second or successive [habeas motion or] a ‘true’ Rule 

60(b) motion.” Spitznas v. Boone, 464 F.3d 1213, 1224 (10th Cir. 2006). A prisoner 

may not file a second or successive § 2255 motion unless he first obtains an order from 

this court authorizing the district court to consider the motion. See Springer, 875 F.3d at 

 4

 Appellant’s notice of appeal designates the denial of his Rule 60(b) motion as the 

only order he seeks to appeal. Our review is limited to that order. See Fed. R. App. P. 

3(c)(1)(B); Scott v. Weaver, 736 F. App’x 715, 718 (10th Cir. 2018). 
5 

972. Absent such authorization, a district court lacks jurisdiction to address the merits of 

a second or successive § 2255 motion. Id. A Rule 60(b) motion should be treated as a 

second or successive § 2255 motion “if it in substance or effect asserts or reasserts a 

federal basis for relief from the petitioner’s underlying conviction.” Spitznas, 464 F.3d at 

1215. A Rule 60(b) motion may not be treated as a successive § 2255 motion if it 

“challenges a defect in the integrity of the federal habeas proceeding,” so long as “such a 

challenge does not itself lead inextricably to a merits-based attack on the disposition of a 

prior [§ 2255 motion].” Id. at 1216. “It is the relief sought, not [the] pleading’s title, that 

determines whether the pleading is a § 2255 motion.” United States v. Nelson, 465 F.3d 

1145, 1149 (10th Cir. 2006). 

Here, Plaintiff’s Rule 60(b) motion amounts to a second or successive § 2255 

motion. Although he tries to dress it in the garb of a procedural defect in the 

proceeding’s integrity, at bottom, his motion is a merits-based attack on the district 

court’s rejection of the Rosemond claim he raised in his § 2255 motion. No matter how it 

is characterized, an argument that the court applied the wrong substantive law to a claim 

is a challenge to the court’s merits-based decision on that claim, a clear indication that the 

motion is actually a second or successive § 2255 motion. See United States v. Bell, 622 

F. App’x 770, 771 (10th Cir. 2015) (holding argument that “district court applied[] the 

wrong legal standard in reviewing [a prisoner’s] claim . . . requires a determination that 

the district court incorrectly ruled on the merits” of the claim); In re Pickard, 681 F.3d 

1201, 1206 (10th Cir. 2012) (“[A] Rule 60(b) motion is actually a second-or-successive 
6 

petition if the success of the motion depends on a determination that the court had 

incorrectly ruled on the merits in the habeas proceeding.”). 

Because Appellant’s Rule 60(b) motion was a second or successive § 2255 

motion, which was not authorized, the district court lacked jurisdiction to consider it and 

should have either dismissed it or, if in the interests of justice, transferred it to this court. 

See Faircloth v. Raemisch, 785 F. App’x 508, 511 (10th Cir. 2019). As there was a plain 

procedural bar to the habeas relief Appellant sought through his Rule 60(b) motion, we 

conclude reasonable jurists could not debate whether he would prevail on appeal. See id.

Accordingly, we DENY Appellant’s request for a COA and DISMISS this appeal 

with instructions to the district court to vacate its denial of Appellant’s Rule 60(b) motion 

and to either dismiss the motion for lack of jurisdiction or to transfer it to this court. 

Appellant’s motion to proceed in forma pauperis on appeal is GRANTED. 

Entered for the Court 

Monroe G. McKay 

Circuit Judge