UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

VINCENT MATHEWS, 

 Defendant - Appellant. 

No. 23-1202 

(D.C. Nos. 1:20-CV-03280-WJM & 

1:16-CR-00129-WJM-1) 

(D. Colo.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before MATHESON, BALDOCK, and EID, Circuit Judges. 

_________________________________ 

Vincent Mathews, a federal prisoner proceeding pro se, requests a certificate of 

appealability (COA) to appeal the district court’s order denying him relief under 

28 U.S.C. § 2255. We deny a COA and dismiss this matter. 

BACKGROUND 

Mr. Mathews was convicted in 2017 on two counts of interference with commerce 

by robbery under 18 U.S.C. § 1951 and one count of being a felon in possession of a 

firearm in violation of 18 U.S.C. § 922(g). He was sentenced to 210 months’ 

imprisonment, and this court affirmed his convictions. 

*

 This order is not binding precedent except under the doctrines of law of the case, 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

January 25, 2024

Christopher M. Wolpert 

Clerk of Court

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In November 2020, Mr. Mathews filed a motion under 28 U.S.C. § 2255 alleging 

ineffective assistance of counsel in violation of the Sixth Amendment. He claimed his 

trial attorney failed to tell him about incriminating evidence in the Government’s 

possession, specifically GPS data placing him at the crime scene and a recording of a 911 

call. Claiming surprise when this evidence was introduced at trial, Mr. Mathews argued 

he would have elected to plead guilty had he known the strength of the Government’s 

case. He asked the district court to vacate his sentence and resentence him in accordance 

with the Government’s plea offer.1

 Mr. Mathews also indicated that he would follow up 

his motion with a supplemental filing containing supporting evidence.2

 In response, the 

Government disputed Mr. Mathews’s contention that he was unaware of the GPS 

evidence and 911 calls, noting that such evidence was the subject of lengthy pretrial 

litigation, including a hearing attended by Mr. Mathews. The Government also pointed 

out that Mr. Mathews had provided neither details about the alleged plea offer nor 

evidence he would have accepted it. 

On November 25, 2020, Mr. Mathews did in fact file a supplement entitled 

“Petitioner’s Timely Memorandum in Support of His [] Now-Pending Motion to Vacate, 

Set Aside, or Correct Sentence [] Under 28 U.S.C. § 2255.” Suppl. R. at 29 

(Supplemental Memorandum). The Supplemental Memorandum contained legal 

arguments and citations in support of Mr. Mathews’s Sixth Amendment claim and 

1

 Mr. Mathews provided no details as to the contents of that offer. 

2

 Mr. Mathews’s original filing under § 2255 was submitted via a standardized 

form “AO 243” provided by the Federal Judiciary. 

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elaborated on his previously asserted factual allegations; it also attached several pages of 

exhibits. Mr. Mathews’s sister, Nina Mathews, signed the Supplemental Memorandum. 

Although she is not an attorney, Ms. Mathews asserted that she signed the document as 

“next friend” of Mr. Mathews who lacked access to the prison library, copy machine, and 

mailroom due to COVID-19 lockdown measures. In a response filed December 7, 2020, 

the Government urged the court to strike the Supplemental Memorandum for failure to 

comply with Federal Rule of Civil Procedure 11. Under that rule, “[e]very pleading, 

written motion, and other paper must be signed by at least one attorney of record in the 

attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ. P. 

11(a). The rule instructs the district court to “strike an unsigned paper unless the 

omission is promptly corrected after being called to the attorney’s or party’s attention.” 

Id. In a reply dated December 14, 2020, Mr. Mathews reiterated his arguments in support 

of his ineffective-assistance claim and attached additional pages of evidentiary support. 

He did not address the Government’s request to strike his Supplemental Memorandum. 

On October 12, 2021, the district court issued an order denying the § 2255 motion, 

dismissing Mr. Mathews’s claims with prejudice, and denying a COA. The court 

considered the merits of Mr. Mathews’s ineffective-assistance claim but found it both 

factually and legally deficient. The court found his claim regarding the GPS evidence 

belied by the record: “Mathews concedes—and the docket confirms—that his attorney 

did disclose the [GPS] evidence, even if the Government presented it at trial in a manner 

that Mathews did not anticipate.” Suppl. R. at 72. And with respect to both the GPS 

evidence and the 911 recording, the court held that even if his counsel had failed to 

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disclose this evidence, Mr. Mathews had failed to show prejudice. The court explained 

Mr. Mathews had provided no details concerning the alleged plea offer that he rejected, 

much less evidence that he would have accepted it. “Rather, he submit[ted] only the 

unadorned assertion that he would have pleaded guilty pursuant to a plea agreement 

rather than proceed to trial.” Id. at 74 (internal quotation marks omitted). This, the court 

concluded, was “insufficient to demonstrate prejudice.” Id. (citing United States v. 

Watson, 766 F.3d 1219, 1225 (10th Cir. 2014)). It therefore denied relief under § 2255, 

concluding Mr. Mathews had failed to make the requisite showing of a Sixth Amendment 

violation under Strickland v. Washington, 466 U.S. 668 (1984). In addition, the court 

struck the Supplemental Memorandum under Federal Rule of Civil Procedure 11(a) 

because it was signed by neither Mr. Mathews nor an attorney of record. 

On May 3, 2023, the district court denied a motion for reconsideration filed by 

Mr. Mathews under Federal Rule of Civil Procedure 59(e). Mr. Mathews then filed a 

timely application for a COA in this court. 

DISCUSSION 

“The issuance of a COA is a jurisdictional prerequisite to an appeal from the 

denial of an issue raised in a § 2255 motion.” United States v. Gonzalez, 596 F.3d 1228, 

1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). To obtain a COA, the 

applicant must make “a substantial showing of the denial of a constitutional right.” 

§ 2253(c)(2). To make that showing, he “must demonstrate that reasonable jurists could 

debate whether (or, for that matter, agree that) the particular issue raised in the petition 

should have been resolved in a different manner or that the issue presented was adequate 

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to deserve encouragement to proceed further.” Gonzalez, 596 F.3d at 1241 (internal 

quotation marks and brackets omitted). 

Mr. Mathews has not even attempted to make that showing here. As a pro se 

litigant Mr. Mathews is of course entitled to a liberal construction of his filings. Watkins 

v. Leyba, 543 F.3d 624, 625 n.1 (10th Cir. 2008). But the court will not act as his 

attorney and construct his arguments for him. Garrett v. Selby Connor Maddux & Janer, 

425 F.3d 836, 840 (10th Cir. 2005). And “an appellant’s pro se status does not excuse 

the obligation of any litigant to comply with the fundamental requirements of the Federal 

Rules of Civil and Appellate Procedure.” Ogden v. San Juan Cnty., 32 F.3d 452, 455 

(10th Cir. 1994). Even liberally construed, Mr. Mathews’s COA application contains no 

argument challenging the district court’s resolution of his constitutional claim. As 

previously noted, the district court considered the § 2255 motion on the merits and held 

Mr. Mathews had failed to show ineffective assistance on the part of his trial counsel. 

Mr. Mathews does not challenge this holding or offer any reason why reasonable jurists 

might debate its correctness. He has therefore failed to make the required showing under 

§ 2253(c)(2) and forfeited potential appellate consideration of this issue. Bronson v. 

Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). 

Mr. Mathews devotes the entirety of his brief to the part of the district court order 

striking the Supplemental Memorandum. He attacks this ruling on multiple grounds, 

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essentially arguing the district court should have allowed him to cure the defect3

 and that 

his sister’s signature was acceptable under the “next-friend doctrine.” We are not at 

liberty to address this argument on a COA application, the granting of which “requires an 

underlying constitutional claim.” United States v. Mulay, 805 F.3d 1263, 1265 (10th Cir. 

2015). “Our precedent is clear that a claim of error concerning statutory interpretation is 

insufficient to warrant a COA . . . .” Id. Accordingly, to the extent Mr. Mathews 

requests a COA to challenge the district court’s application of Federal Rule of Civil 

Procedure 11(a), we must deny that request. 

Mr. Mathews contends the striking of the Supplemental Memorandum “effectively 

denied [him] his day in court.” COA Appl. at 10. But even construed liberally as a due 

process claim properly raised on a COA application, we must reject this argument 

because Mr. Mathews fails to explain how he was prejudiced by the court’s action. See 

United States v. Lovasco, 431 U.S. 783, 790 (1977) (“[P]roof of prejudice is generally a 

necessary but not sufficient element of a due process claim.”). Although he makes 

numerous claims of error concerning the stricken memorandum, nowhere does 

Mr. Mathews contend the district court failed to consider any of his substantive 

arguments. Nor could he. Contrary to Mr. Mathews’s contention, the district court did 

not deny his § 2255 motion on procedural grounds or because it believed jurisdiction was 

3

 We note the district court’s order came almost a year after the Government 

moved to strike the Supplemental Memorandum. Mr. Mathews does not explain why he 

made no effort to cure the defective filing in that ten-month period. 

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lacking.4

 The court carefully considered all arguments made in support of the § 2255 

motion and denied relief on the merits. 

The court struck the Supplemental Memorandum for failure to comply with 

Rule 11(a). But there is no indication—and Mr. Mathews does not argue—that the 

Supplemental Memorandum contained unique arguments not otherwise asserted and 

considered. To the contrary, the Supplemental Memorandum merely repeated the claims 

in Mr. Mathews’s original filing—that his counsel’s “misadvice” regarding the 

Government’s possession of incriminating evidence “caused him to pass on a guilty plea 

[] that he otherwise would have accepted.” COA Appl. at 8 (describing the arguments 

made in the Supplemental Memorandum). Because the district court explicitly 

considered and rejected this contention, Mr. Mathews cannot show that he was prejudiced 

by the order striking the Supplemental Memorandum. 

CONCLUSION 

By failing to address the district court’s ruling on his Sixth Amendment claim, 

Mr. Mathews has necessarily failed to make “a substantial showing of the denial of a 

constitutional right.” § 2253(c)(2). The district court’s application of Federal Rule of 

Civil Procedure 11(a) is not a proper basis for granting a COA. And to the extent 

Mr. Mathews attempts to assert a due process violation stemming from the stricken 

4

 Mr. Mathews makes several references to the district court’s jurisdiction and 

how striking the Supplemental Memorandum might have affected it. See, e.g., COA 

Appl. at 13 (“The district court erroneously struck [the Supplemental Memorandum] 

without issuing an Order directing him to cure the deficiency . . . which would have 

established jurisdiction irrespective of his sister’s standing.”); see also id. at 15 (“[T]he 

district court had jurisdiction because his sister Nina was a proper next friend . . . .”). 

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supplement, his failure to show prejudice, again, means he has failed to make a 

substantial showing of the denial of a constitutional right. 

The COA application is DENIED and this matter is dismissed. 

Mr. Mathews’s request to proceed in forma pauperis is GRANTED. 

Entered for the Court 

Allison H. Eid 

Circuit Judge 

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