F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 18 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DAVID RAY CORY,
Plaintiff-Appellant,
v.
No. 97-2242
(D.C. No. CIV-97-585-JC)
UNITED STATES OF AMERICA.
(District of New Mexico)
Defendant-Appellee,
ORDER AND JUDGMENT*
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the doctrines of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. 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.
David Cory appeals from a judgment denying his application for relief under 28
U.S.C. § 2255 in which he claimed the judgment against him should be vacated because
he was arrested by “Military forces.” The district court held the issue should have been
raised by direct appeal, denied relief and dismissed the petition. The matter is pending
before us upon application for a certificate of probable cause. Having reviewed the entire
matter, we conclude the district court’s judgment was correct. We DENY a certificate of
probable cause for the reasons stated by the district court in its memorandum opinion and
order. We note also the legal capacity of arresting officers is moot after conviction. See
Washington v. United States, 292 F.2d 452, 453 (8th Cir. 1961).
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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