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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before MATHESON , BALDOCK , and EID , Circuit Judges.

________________ _________________ Vincent Mathews, a federal prisoner pro ceeding pro se, requests a certificate of appealability (COA) to appeal the distri ct court’s order denying him relief under 28 U.S.C. § 2255. We deny a CO A and dismiss this matter.
BACKGROUND Mr. Mathews was convicted in 2017 on tw o 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 12 In November 2020, Mr. Mathews filed a motion under 28 U.S. C. § 2255 alleging ineffective assistance of counsel in violati on of the Sixth Amendment. He claimed his trial attorney failed to tell him about in criminating 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 in troduced 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 indicate d that he would follow up his motion with a supplemental fili ng containing supporting evidence. 2 In response, the Government disputed Mr. Mathews’s cont ention that he was unaware of the GPS evidence and 911 calls, noting th at 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, M r. Mathews did in fact fi le a supplement entitled “Petitioner’s Timely Memorandum in Support of His [] Now-Pending Motion to Vacate, Set Aside, or Correct Sentence [] Unde r 28 U.S.C. § 2255.” Suppl. R. at 29 (Supplemental Memorandum). The Supple mental 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. Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 23 elaborated on his previously a sserted factual allegations; it also attached several pages of exhibits. Mr. Mathews’s sister, Nina Math ews, signed the Supplemental Memorandum. Although she is not an attorn ey, Ms. Mathews asserted that she signed the document as “next friend” of Mr. Mathews who lacked access to the pris on library, copy machine, and mailroom due to COVID-19 lock down measures. In a respon se filed December 7, 2020, the Government urged the court to strike th e Supplemental Memorandum for failure to comply with Federal Rule of Civil Procedur e 11. Under that rule, “[e]very pleading, written motion, and other paper mu st be signed by at least one attorney of re cord in the attorney’s name—or by a party pe rsonally if the party is unrepre sented.” Fed. R. Civ. P. 11(a). The rule instructs the district c ourt to “strike an unsigned paper unless the omission is promptly corrected after being calle d 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 attach ed 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 i ssued an order denying the § 2255 motion, dismissing Mr. Mathews’s claims with pr ejudice, and denying a COA. The court considered the merits of Mr. Mathews’s in effective-assistance claim but found it both factually and legally deficient. The cour t found his claim rega rding the GPS evidence belied by the record: “Mathews concedes—a nd the docket confirms—that his attorney did disclose the [GPS] ev idence, 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 Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 34 disclose this evidence, Mr. Mathews had faile d to show prejudice. The court explained Mr. Mathews had provided no details concerni ng the alleged plea offer that he rejected, much less evidence that he would have accept ed it. “Rather, he submit[ted] only the unadorned assertion that he would have pl eaded guilty pursuant to a plea agreement rather than pro ceed to trial.” Id. at 74 (internal qu otation 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 th e requisite showing of a Sixth Amendment violation under Strickland v. Washington , 466 U.S. 668 (1984). In addition, the court struck the Supplemental Me morandum under Federal Rule of Civil Procedure 11(a) because it was signed by neither Mr. Math ews nor an attorney of record. On May 3, 2023, the district court deni ed a motion for reconsideration filed by Mr. Mathews under Federal Rule of Civil Pr ocedure 59(e). Mr. Mathews then filed a timely application for a COA in this court.
DISCUSSION “The issuance of a COA is a jurisdictiona l 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 “m ust demonstrate that reasonable jurists could debate whether (or, for that matter, agree that ) the particular issue raised in the petition should have been resolv ed in a different manner or that the issue presented was adequate Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 45 to deserve encouragement to proceed further.” Gonzalez , 596 F.3d at 1241 (internal quotation marks and brackets omitted). Mr. Mathews has not even a ttempted to make that show ing 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 distri ct court’s resolution of hi s constitutional claim. As previously noted, the district court consider ed the § 2255 motion on the merits and held Mr. Mathews had failed to show ineffective a ssistance 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 therefor e failed to make the required showing under § 2253(c)(2) and forfeited potential appella te consideration of this issue. Bronson v.
Swensen , 500 F.3d 1099, 1 104 (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, Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 56 essentially arguing the distri ct court should have allowed him to cure the defect 3 and that his sister’s signature was acceptable under th e “next-friend doctrine.” We are not at liberty to address this argument on a COA a pplication, 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 cour t’s application of Federal Rule of Civil Procedure 11(a), we must deny that request. Mr. Mathews contends the striking of th e 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 app lication, 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]r oof of prejudice is generally a necessary but not sufficient element of a du e process claim.”). Although he makes numerous claims of error concerning th e stricken memorandum, nowhere does Mr. Mathews contend the district court fa iled 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 gr ounds or because it believed jurisdiction was

3 We note the district court’s order cam e 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 defec tive filing in that ten-month period. Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 67 lacking. 4 The court carefully considered all ar guments made in support of the § 2255 motion and denied relief on the merits. The court struck the Supplemental Memo randum 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 distri ct 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 pro cess violation stemming from the stricken

4 Mr. Mathews makes several references to the district court’s jurisdiction and how striking the Supplemental Memo randum might have affected it. See, e.g. , COA Appl. at 13 (“The district court erroneousl y struck [the Supplemental Memorandum] without issuing an Order directing him to cu re the deficiency . . . which would have established jurisdiction irrespectiv e 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 . . . .”). Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 78 supplement, his failure to show prejudice, again, means he has failed to make a substantial showing of the deni al of a constitutional right. The COA application is DENIED a nd this matter is dismissed. Mr. Mathews’s request to proceed in forma pauperis is GRANTED.

Entered for the Court

Allison H. Eid Circuit Judge Appellate Case: 23-1202 Document: 010110989891 Date Filed: 01/25/2024 Page: 8