Fernandez v. Rogers

── Fernandez v. Rogers ── Case No.: 25-5162 Court: Court of Appeals for the Tenth Circuit Date: March 17, 2026 Category: General Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT March 17, 2026 _________________________________ Christopher M. Wolpert Clerk of Court ERIC FERNANDEZ, Petitioner - Appellant, v. No. 25-5162 (D.C. No. 4:24-CV-00489-SEH-MTS) DAVID ROGERS, Interim Warden, (N.D. Okla.) Respondent - Appellee. _________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________ Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges. _________________________________ Eric Fernandez, an Oklahoma prisoner, applies for a certificate of appealability (COA) under 28 U.S.C. § 2253(c)(1)(A) to challenge the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus application. The district court determined that the application was time-barred by the one-year limitation period in 28 U.S.C. § 2244(d)(1)(A). It also determined that neither statutory nor equitable tolling applied and that an evidentiary hearing was not warranted. A COA is a jurisdictional prerequisite to our appellate review. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). We deny a COA and dismiss the appeal. * This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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.  Appellate Case: 25-5162 Document: 12-1 Date Filed: 03/17/2026 Page: 2 Background On September 13, 2021, Mr. Fernandez entered a nolo contendere plea to six counts in connection with a domestic violence incident. R. 107–08. He was sentenced to 35 years’ imprisonment on the most serious count on November 23, 2021. Id. at 125. Mr. Fernandez explains that immediately after the sentencing he requested that his lawyers initiate an appeal and was assured that they would do so. Aplt. Br. at 4. Counsel filed a notice of intent to appeal in district court on December 1, 2021. R. 140. If a defendant’s conviction is by way of a guilty plea, an Oklahoma defendant may pursue a direct appeal by certiorari. Okla. Stat. Ann. tit. 22, § 1051(A). However, a defendant must first file a written application to withdraw his plea within ten days of sentencing as required by Rule 4.2(A) of the appellate rules. Okla. Ct. Crim. App. R. 4.2(A), Tit. 22, Ch. 18, App’x. Although his plea documents advised of this requirement, no such motion was filed. Accordingly, Mr. Fernandez’s conviction became final on December 3, 2021. Mr. Fernandez contends that counsel lulled him into thinking that a direct appeal had been properly filed. Aplt. Br. at 4–5. He relies upon a December 2, 2021 letter where counsel had stated “We have begun the appeal process to appeal Eric’s sentence[,]” R. 254, and a telephone call made to counsel on January 20, 2022, Aplt. Br. at 5. He alleges that counsel assured him it had been filed. Id. Mr. Fernandez alleges that he learned of this problem after counsel sent him a letter dated December 12, 2022 indicating that the Oklahoma Court of Criminal Appeals (OCCA) had declined