United States v. O'Bryant, 10th Cir. (1998)
United States v. O'Bryant, 10th Cir. (1998)
OCT 2 1998
PATRICK FISHER
Clerk
v.
No. 98-1197
(D.C. No. 98-S-427)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9.
The case is therefore ordered submitted without oral argument. This Order and
Judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
*
United
States v. OBryant , No. 94-1065, 1994 WL 683940 (10th Cir. Dec. 7, 1994)
(unpublished).
On April 16, 1997, Defendant filed in his captioned criminal case a Motion
for Declaratory Judgment pursuant to Fed. R. Civ. P. 57 in the district court,
seeking a determination of the federal governments legislative jurisdiction and
venue over the banks he robbed. Noting that the relief requested in defendants
motion was not completely clear, the district court denied the motion on May 13,
1997, concluding that defendant could not file motions pursuant to the Federal
Rules of Civil Procedure in his
suggested, however, that defendant seek relief in a separate civil action under 28
U.S.C. 2255. Defendant neither appealed the district courts denial of his
Motion for Declaratory Judgment nor requested leave to amend his motion.
Instead, on June 9, 1997, defendant filed again in his captioned criminal case a
Jurisdictional Challenge, claiming that the federal government lacked
jurisdiction over the banks he robbed. Defendant subsequently filed a Motion for
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however, that defendants 2255 motion was nonetheless time-barred by the oneyear limitations period imposed on such motions by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, tit. I,
104 (1996) (to be codified at 28 U.S.C. 2254-2266).
In United States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997), this
court held that prisoners whose convictions became final on or before April 24,
1996 (the effective date of AEDPA), must file their 2255 motions before April
24, 1997. Defendant did not file his motion until February 20, 1998. Mr.
OBryant does not contend that he was prevented by government action from
filing his motion or that his motion asserted a right newly recognized by the
Supreme Court. Furthermore, defendant does not present any valid claim that he
had newly discovered evidence that could not have been discovered through the
exercise of due diligence.
As a result, we find no exception to the limitations period that applies to all
2255 motions under the 1996 AEDPA amendments. Thus, while Mr. OBryant
could have raised issues of jurisdiction and ineffective assistance in a timely-filed
collateral attack, Mr. OBryants February 10, 1998 2255 motion is simply timebarred. 1
We note that, even assuming the motion were timely, Mr. OBryants
jurisdictional claims (as well as his related ineffective assistance claims) are
(continued...)
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court that the fact that Mr. OBryant is barred by the one-year limitation period
from asserting his claims pursuant to 2255 does not establish that the remedy in
2255 is inadequate or ineffective to test the legality of his detention. 28
U.S.C. 2255; see In Re Vial, 115 F.3d 1192, 1194 n.5 (4th Cir. 1997) ([T]he
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unfounded: the record conclusively shows that Mr. OBryant stipulated at trial to
the federally insured status of the two bank properties. (Am. Trial Stipulations
(11-29-93) 1, 5.)
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