FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 2, 2007
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 07-6069
v. W .D. Okla.
C LEO PA TTER SO N , (D.C. No. CR-05-68-C)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Cleo Patterson, a federal prisoner appearing pro se, 1 appeals from the
district court’s denial of his post-appeal motions to dismiss the indictment against
him, and for return of his forfeited property and subsequent motions for
reconsideration. Patterson filed a motion to proceed in form a pauperis (ifp) w ith
this Court. W e GRANT his motion to proceed ifp and DISM ISS the appeal for
lack of jurisdiction.
I. BACKGROUND
Patterson was convicted of possession with intent to distribute cocaine in
violation of 21 U.S.C. § 841(a)(2) and 18 U.S.C. § 2, and traveling in interstate
comm erce with intent to further a drug trafficking enterprise in violation of 18
U.S.C. §§ 1952(a)(3) and 2. He was sentenced to 360 months in prison to be
followed by five years supervised release. On December 27, 2006, we affirmed
Patterson’s conviction and determined, inter alia, he forfeited the protections of
the Speedy Trial Act requiring an indictment within thirty days from arrest by:
(1) failing to move for dismissal before trial, and (2) failing to raise the issue in
his opening brief. See United States v. Patterson, 472 F.3d 767, 783 (10th Cir.
2006) (citing United States v. Lugo, 170 F.3d 996, 1001 (10th Cir. 1999);
Coleman v. B-G M aint. M gmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir.
1997)). Patterson filed a petition for rehearing en banc, which was denied. The
1
Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
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mandate was issued on February 22, 2007. He filed a petition for writ of
certiorari with the Supreme Court, but did not file a petition with this Court to
stay the mandate pending a determination from the Supreme Court. See Fed. R.
App. P. 41(d)(2)(A).
On M arch 1, 2007, Patterson filed a “M otion for Return of Property” with
the district court seeking the return of his van in which approximately 67 pounds
of cocaine were found in a hidden compartment, and a “Nunc Pro Tunc M otion to
Dismiss Indictment for Violation of Speedy Trial Act 30 Days to Indicment
[sic].” (R. Vol. 2, Docs. 90 & 91.) The district court denied both motions on
M arch 7, 2007. Patterson filed motions to reconsider, which were denied on
M arch 16, 2007. Five days later, Patterson filed a notice of appeal.
II. D ISC USSIO N
Patterson challenges the district court’s denial of his post-appeal motion to
dism iss the indictment under the Speedy Trial Act. 2 The government argues w e
lack jurisdiction because Patterson failed to timely file his notice of appeal and
failed to collaterally attack his conviction under 28 U.S.C. § 2255. “W e review
jurisdictional questions de novo as a question of law.” United States v. Perez-
Herrera, 86 F.3d 161, 163 (10th Cir. 1996). “[E]very federal appellate court has
a special obligation to satisfy itself not only of its own jurisdiction, but also that
2
Patterson’s notice of appeal also identified the district court’s denial of
his motions for return of property and reconsideration. Patterson, however, failed
to address the issue on appeal and has waived it. See Coleman, 108 F.3d at 1205.
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of the lower courts in a cause under review . . . .” Bender v. Williamsport Area
Sch. Dist., 475 U.S. 534, 541 (1986) (quotation omitted). “[When the lower
federal court] lack[s] jurisdiction, we have jurisdiction on appeal, not of the
merits but merely for the purpose of correcting the error of the lower court in
entertaining the suit.” Id. (alteration in original) (quoting United States v.
Corrick, 298 U.S. 435, 440 (1936)).
A. Notice of Appeal
The government argues Patterson’s notice of appeal was untimely and his
motions for reconsideration did not toll the filing deadline. See e.g., United
States v. M arch, 700 F.2d 1322, 1324, 1328 (10th Cir. 1983) (holding a motion to
reconsider the denial of a motion for new trial does not toll the time for appeal).
W e need not address tolling because Patterson’s notice of appeal was timely filed.
The district court denied Patterson’s motion for return of property and nunc
pro tunc motion to dismiss the indictment on M arch 7, 2007. To the extent we
construe Patterson’s appeal as an appeal from a criminal proceeding, he was
required to file notice by M arch 21, 2007. See Fed. R. App. P. 4(b)(1)(A)(i);
26(a)(1) & (2). In compliance with the prisoner mailbox rule, Patterson timely
filed his notice of appeal on M arch 21, 2007. See Fed. R. App. P. 4(c)(1).
B. Post-Appeal M otion to D ismiss
Patterson argues the district court erred when it denied his post-appeal
motion to dismiss the indictment for violating the Speedy Trial Act because the
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government failed to indict him within thirty days of his arrest. See 18 U.S.C.
§ 3161(b). In doing so, he is attempting to collaterally attack his conviction
which was affirmed on direct appeal. Patterson did not address the jurisdictional
basis for his post-appeal motion to dismiss with the district court, but rather
attempted to invoke the “court’s inherent power over its own proceedings.” (R.
Vol. 2, Doc 91.) This he cannot do.
“A district court does not have inherent authority to modify a previously
imposed sentence; it may do so only pursuant to statutory authorization.” United
States v. M endoza, 118 F.3d 707, 709 (10th Cir. 1997); see also Bender, 475 U.S.
at 541 (“Federal courts are not courts of general jurisdiction; they have only the
power that is authorized by Article III of the Constitution and the statutes enacted
by Congress pursuant thereto.”). A motion to vacate, correct or set aside a
sentence under 28 U.S.C. § 2255 would provide statutory authority, but Patterson
did not characterize his motion as such. See M endoza, 118 F.3d at 709. Nor did
the district court so construe it. Therefore, the district court lacked jurisdiction to
hear his motion.
W e decline to recharacterize Patterson’s motion to dismiss as a 28 U.S.C.
§ 2255 motion in the first instance. See United States v. Kelly, 235 F.3d 1238,
1241-42 (10th Cir. 2002) (addressing the potentially adverse consequences of
recharacterizing a pro se post-conviction motion not expressly made under
§ 2255). If Patterson wants to collaterally attack the sufficiency of his
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indictment, he must now do so in a timely 28 U.S.C. § 2255 motion. However,
we caution that “[w]hen a defendant fails to raise an issue on direct appeal, he is
barred from raising the issue in a § 2255 proceeding, unless he establishes either
cause excusing the procedural default and prejudice resulting from the error or a
fundamental miscarriage of justice if the claim is not considered.” United States
v. Cox, 83 F.3d 336, 341 (10th Cir. 1996).
W e GR ANT Patterson’s motion to proceed ifp and DISM ISS the appeal for
lack of jurisdiction.
ENTERED FOR THE COURT
Terrence L. O’Brien
Circuit Judge
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