F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
May 8, 2007
FO R TH E TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee, No. 07-4027
(D.C. No. 2:04-CR-91-TC)
v. (D. Utah)
JEROM E V IC TO R TR AFN Y ,
Defendant-Appellant.
OR D ER AND JUDGM ENT *
Before H E N RY, BR ISC OE, and HA RTZ, Circuit Judges.
After examining the briefs and 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(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
The defendant appeals the district court’s denial of his post-judgment
motion in which he sought relief from his criminal sentence under Fed. R. Crim.
P. 36 (providing that the district court may correct a clerical error at any time).
*
This order and judgment is not binding precedent, except under the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.
W e vacate the order for lack of jurisdiction, construe the defendant’s notice of
appeal and appellate brief as an implied application for authorization to file
another 28 U.S.C. § 2255 motion, and deny authorization.
The defendant was convicted, following a guilty plea, of one count of bank
robbery, for which he was sentenced to 151 months’ incarceration to be followed
by 36 months of supervised release. He was also ordered to pay $6,083.00 in
restitution. On direct appeal, pursuant to a joint stipulation entered into by the
parties, the matter w as remanded for resentencing under United States v. Booker,
543 U.S. 220 (2005). See United States v. Trafny, No. 04-4160 (10th Cir. Feb.
28, 2005) (unpublished order). On remand, the court lowered the incarceration
period to 63 months, but did not change the period of supervised release or the
amount of restitution.
Pursuant to a subsequently filed 28 U.S.C. § 2255 in early 2006, the district
court again filed an amended judgment, this time changing when the restitution
payments were to begin and when drug testing of the defendant while he was on
supervised release would be done.
Later the same year, the defendant again sought relief under § 2255,
claiming that the imposition of supervised release voided his sentence under
Booker and violated the Double Jeopardy Clause. The district court transferred
the motion to this court as a successive § 2255 motion. Authorization to file the
motion was denied. See Trafny v. United States, No. 06-4229 (10th Cir. Dec. 15,
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2006) (unpublished).
The defendant then filed the Rule 36 motion which is the subject of this
appeal. He argued that the district court did not impose supervised release at the
sentencing hearing and that therefore the written judgment which did include
supervised release needed to be corrected to delete the period of supervised
release.
The district court denied the motion, concluding that the defendant’s
motion was really a § 2255 motion and that the judgment which the defendant
sought to challenge was already the subject of the previously filed § 2255
motions. See United States v. Nelson, 465 F.3d 1145, 1147, 1149 (10th Cir. 2006)
(a pleading asserting a new ground for relief is advancing a new claim and is
therefore treated as a successive § 2255 motion under Gonzalez v. Crosby, 545
U.S. 524 (2005), no matter w hat the pleading is entitled). The district court,
however, lacked jurisdiction to deny the motion. See Nelson, 465 F.3d at 1148
(“[A] second or successive § 2255 motion cannot be filed in district court without
approval by a panel of this court. As a result, if the prisoner’s pleading must be
treated as a second or successive § 2255 motion, the district court does not even
have jurisdiction to deny the relief sought in the pleading.”) (internal citations
omitted). A ccordingly, the court’s order must be vacated. Id. at 1146.
W e will, however, treat the defendant’s notice of appeal and appellate brief
as an implied application for leave to file another § 2255 motion. Id. at 1149.
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See also United States v. Torres, 282 F.3d 1241, 1246 (10th Cir. 2002) (the court
is not required to give notice to a petitioner before recharacterizing a pleading as
a § 2255 motion w here the pleading is a second/successive motion; “to allow a
petitioner to avoid the bar against successive § 2255 motions by simply styling a
petition under a different name would severely erode the procedural restraints
imposed under [§] 2255.”).
After thoroughly reviewing the matter, we conclude that the defendant has
failed to make the prima facie showing required by § 2255 as amended by the
Antiterrorism and Effective Death Penalty Act. His contentions are not based on
newly discovered evidence that, “if proven and viewed in light of the evidence as
a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable fact finder would have found [him] guilty of the offense” or on 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. In fact, the
defendant challenged the imposition of supervised release in one of his previous §
2255 motions.
The district court order is VAC ATED, and the implied application for
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authorization to file another § 2255 motion is DENIED. The mandate shall issue
forthwith.
ENTERED FOR THE COURT
PER CURIAM
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