F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 9 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
Case No. 97-5079
v.
(D.C. 91-CR-158-C)
JERRY CRAIG COLEMAN, (Northern District of Oklahoma)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, this panel has unanimously
determined that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 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* This order and judgment is not binding precedent, except under the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.
Pro se prisoner Jerry Craig Coleman appeals the district court’s denial of
his 18 U.S.C. § 3013(c) motion for remission of imposed restitution. We deny
Mr. Coleman leave to appeal.
I. BACKGROUND
Mr. Coleman was convicted of armed bank robbery and use of a firearm
during a crime of violence. He was sentenced to 322 months’ imprisonment and
ordered to pay restitution. Mr. Coleman’s conviction and sentence were affirmed
on appeal.
Approximately five years after he was convicted and sentenced, Mr.
Coleman moved for remission of the imposed restitution, arguing that his
obligation to pay had expired. The district court denied his motion, and Mr.
Coleman appeals. After filing his appeal, Mr. Coleman moved for appointment of
counsel, arguing that he needs assistance with discovery vis-a-vis the issues on
appeal.
II. DISCUSSION
A. Jurisdiction
The government argues that Mr. Coleman’s notice of appeal was not timely
filed and that we therefore lack jurisdiction. “[T]imely filing of a notice of
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appeal is required to vest this court with jurisdiction.” United States v. Ibarra,
920 F.2d 702, 704 (10th Cir. 1990), vacated on other grounds, 502 U.S. 1 (1991).
Rule 4(b) of the Federal Rules of Appellate Procedure provides that “[i]n a
criminal case, a defendant shall file the notice of appeal in the district court
within 10 days after the entry . . . of the judgment or order appealed from.” Fed.
R. App. P. 4(b). Mr. Coleman’s notice of appeal was filed fourteen days after
entry of the district court order he seeks to appeal.
For the reasons stated in the next section, we construe Mr. Coleman’s
motion as being made pursuant to 28 U.S.C. § 2255. Section 2255 appeals are
governed by the time requirements for civil (not criminal) appeals. See Klink v.
United States, 308 F.2d 775, 776 (10th Cir. 1962). The time to file an appeal in a
civil case in which the United States is a party is within sixty days after entry of
the order or judgment appealed from. See Fed. R. App. P. 4(a)(1). For this
reason, Mr. Coleman’s notice of appeal was timely, and we have jurisdiction.
B. Restitution
Mr. Coleman requests that he be relieved of the duty to pay restitution in
accordance with 18 U.S.C. § 3013(c), which states: “The obligation to pay an
assessment ceases five years after the date of the judgment.” 18 U.S.C. § 3013(c)
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(1994). Mr. Coleman also objects, for the first time on appeal, to errors allegedly
committed when the order of restitution was originally entered. 1
We construe Mr. Coleman’s arguments as being made pursuant to 28 U.S.C.
§ 2255. See 28 U.S.C. § 2255 (“A prisoner in custody . . . claiming . . . that the
sentence . . . is . . . subject to collateral attack, may move the court . . . to . . .
correct the sentence.”); see also United States v. Pogue, 865 F.2d 226, 228-30
(10th Cir. 1989) (per curiam) (allowing a defendant to proceed under section 2255
when challenging an order of restitution). Although Mr. Coleman based his
argument in the district court on 18 U.S.C. § 3013(c), that section does not
authorize the filing of a motion, as does section 2255.
Because Mr. Coleman has filed previous section 2255 motions, see, e.g.,
United States v. Coleman, No. 96-5142, 1997 WL 608762, at *1 (10th Cir. Oct. 3,
1997), section 2255 requires that he obtain the authorization of this court before
presenting a “second or successive” motion to the district court. See 28 U.S.C. §
2255; see also Coleman v. United States, 106 F.3d 339, 340 (10th Cir. 1997) (per
curiam). We construe Mr. Coleman’s notice of appeal and appellate brief as a
request for such authorization. See Pease v. Klinger, 115 F.3d 763, 764 (10th Cir.
1
Specifically, Mr. Coleman argues: (1) that he should not have been
ordered to pay restitution when his co-defendant was not ordered to do so, and (2)
that the amount of restitution he was ordered to pay should have been reduced by
the value of an automobile that the government purportedly seized from his co-
defendant.
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1997). We deny Mr. Coleman permission to present to the district court the
arguments he raises for the first time on appeal, as these arguments are not based
on either “newly discovered evidence” or “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. § 2255.
We decline, however, to apply the “newly discovered evidence” and “new
rule of constitutional law” requirements to the expiration issue that Mr. Coleman
did present to the district court. Restrictions on “second or successive” petitions
exist to prevent a convicted defendant from presenting his arguments piecemeal,
through a series of motions — rather than in an initial, comprehensive motion.
See Sanders v. United States, 373 U.S. 1, 17-18 (1963). Mr. Coleman could not
reasonably have been expected to present his expiration argument in an earlier
motion, because he claims the restitution order did not expire until about the time
he filed the present motion.
Rather than disposing of Mr. Coleman’s expiration argument on “second or
successive” grounds, we construe his brief on appeal as an application for a
certificate of appealability, see Sena v. New Mexico State Prison, 109 F.3d 652,
653 (10th Cir. 1997), which we deny. Mr. Coleman has not made “a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
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III. CONCLUSION
For the foregoing reasons, we DENY Mr. Coleman leave to present to the
district court the arguments he raises for the first time on appeal, and we DENY
him a certificate of appealability as to the expiration issue that he did present to
the district court. Because our disposition of this appeal does not depend on the
analysis of evidentiary issues, discovery is unnecessary, and we therefore DENY
Mr. Coleman’s motion for appointment of counsel. The mandate shall issue
forthwith.
Entered for the Court,
Robert H. Henry
Circuit Judge
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