F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 18 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 96-4165
(D. Ct. No. 96-CV-400)
TORREY ALLEN FETHEROLF, (Utah)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, BALDOCK, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this three-judge panel
has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.
Petitioner Fetherolf appeals from an order of the district court denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2255. Petitioner
alleges on appeal that the district court erred in denying post-conviction relief
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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.
because the district court failed to determine that the U.S. District Court for the
District of Utah was without subject-matter jurisdiction when it sentenced
petitioner on his original sentence. We affirm.
In January 1993, petitioner pled guilty to armed bank robbery in the U.S.
District Court for the District of Utah. It is clear from the record that during that
guilty plea proceeding, the United States specifically stated on the record that the
banks to which petitioner was pleading guilty of robbing had been insured by the
National Credit Union Association and that petitioner had used a gun in one of
the robberies. Petitioner’s attorney was asked if the facts were sufficient for the
United States to establish its case. Petitioner’s attorney agreed that the facts
asserted by the United States were sufficient to establish the elements of the case.
The judge reiterated that the banks were insured by the National Credit Union
Association. Further, this court in affirming the direct appeal of petitioner’s
judgment and sentence stated that the banks were insured by the National Credit
Union Association. Therefore, there is no merit to petitioner’s allegations that the
district court was without subject matter jurisdiction to accept the guilty plea or to
impose sentence pursuant to that guilty plea.
Petitioner further alleges on appeal that his trial counsel failed to provide
adequate assistance of counsel because counsel did not challenge the district
court’s jurisdiction over the offense. This allegation on appeal is premised on
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petitioner’s argument that he was convicted of robbing banks which were not
insured for the purposes of 28 U.S.C. § 2113(d). Petitioner failed in the district
court and has failed on appeal to come forward with any evidence that the banks
he robbed were not insured by the National Credit Union Association. The record
supports a determination that the financial institutions robbed were so insured.
Therefore, petitioner has failed to provide any colorable showing of a basis for a
lack of subject matter jurisdiction or for ineffective assistance of counsel.
The United States has filed a motion to supplement its answer brief to
respond to the petitioner’s claim concerning ineffective assistance of counsel.
That motion is granted. All other motions are denied. The order of the district
court is affirmed for substantially the reasons given by the magistrate judge and
adopted by the district court. AFFIRMED.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Circuit Judge
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