## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 28 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESSE JOSEPH MAYNARD, Defendant - Appellant. No. 04-6071 (D.C. Nos. 02-CV-1580-R and 98-CR-164-R) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.

Petitioner-Appellant Jesse Joseph Maynard, a federa l inmate appearing pro se, seeks to appeal from the district court’s denia l of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. In order to merit a certificate of appealability (COA), Mr. Maynard must make “a subst antial showing of the denial of a constitutional right.” 28 U.S.C. 2253( c)(2). To make such a showing, Mr. Maynard must demonstrate that reasonable jurist s would find the district court’s resolution of the constitutional issues con tained in his motion debatable or wrong. Slack v. McDaniel , 529 U.S. 473, 484 (2000); see also Miller-El v. Cockrell , 537 U.S. 322, 327 (2003). Because we determine t hat Mr. Maynard has- 2 -

not made such a showing, we deny a COA and dismiss the appeal. In view of our resolution, we deny Mr. Maynard’s motion for releas e pending review. Fed. R. App. P. 23(b). On September 1, 1999, Mr. Maynard was convicted by jury of conspiracy, 18 U.S.C. § 371, concealment of the assets of a ban kruptcy estate, 18 U.S.C. §§ 152 and 2, and embezzlement against a bankruptcy estate, 18 U.S.C. §§ 153 and 2. He was subsequently sentenced to 78 months in prison, and this court affirmed the conviction on June 20, 2001. See United States v. Maynard , No. 00- 6082, 2001 WL 690392 (10th Cir. June 20, 2001). Mr. Maynard filed his § 2255 motion in the districtcourt on October 25, 2002. After thoroughly examining the issues raised by Mr. Maynard and the trial record including the transcript, the district courtdenied Mr. Maynard’s motion on January 6, 2004. Mr. Maynard subsequently filed an application for a COA with the district court. The district court failed to a ct on this application. Thus, pursuant to the Tenth Circuit Emergency General Ord er of October 1, 1996, the application was deemed denied. Mr. Maynard then ma de timely application for a COA with this court. In his application for a COA, Mr. Maynard seeks to appeal the following contentions rejected by the district court on the m erits: (1) the bankruptcy court and district court lacked subject matter jurisdicti on; (2) the bankruptcy court and- 3 -

district court compromised his due process rights u nder the Fifth Amendment by denying his jurisdictional challenge without a hear ing; (3) he was denied constitutionally effective assistance of counsel. Aplt. Appl. for COA at 3; Aplt. Opening Br. at i. Having carefully considered the materials, we do not believe that the district court’s determinations are fairly debatable. Mr. Maynard first posits in his application that th e district court lacked subject matter jurisdiction over the offenses charg ed in the indictment. He argues that, because First American Casualty Company (“FAC C”), the debtor in the underlying bankruptcy petition, was a foreign corpo ration, the bankruptcy court lacked jurisdiction, and, consequently, jurisdictio n could not lie for the criminal charges levied against Mr. Maynard, FACC’s President. The district court concluded that Mr. Maynard’s collateral attack of t he bankruptcy proceeding offered no defense to his subsequent criminal convi ction. This conclusion is not fairly debatable. “[S]uch an attack may not be cou ntenanced in any case against the bankrupt, even in a criminal proceeding , where the indictment has charged the bankrupt with a violation of the Bankruptcy Act.” United States v. Kramer , 279 F.2d 754, 757 (3d Cir. 1960)(emphasis added). More over, it appears from the record that Mr. Maynard voluntarily sought the prot ection of the bankruptcy court, signing the Chapter 11 petition on behalf of FACC. Under such circumstances, Mr. Maynard is estopped from raising this attack where the record- 4 -

discloses a valid petition. See United States v. Vanderberg , 358 F.2d 6, 9 (7th Cir. 1966). Mr. Maynard next asserts that, because both the ban kruptcy court and the district court denied his jurisdictional challenge without a hearing, his rights to due process under the Fifth Amendment to the Consti tution were in some manner compromised. Mr. Maynard argues that Fed. R. Civ. P. 44.1, relevant to parties seeking to raise an issue of foreign law, mandates that the court of first instance suspend proceedings and conduct a hearing to determ ine the jurisdictional issue. Mr. Maynard first raised this issue, tangentially, as part of his claim of ineffective assistance of counsel, arguing that counsel was ine ffective in pursuing a hearing on the matter. The district court, addressing the timing of the trial court’s denial of a motion to quash the indictment on the basis of jurisdiction, found no prejudice in that the motion lacked all merit. As we have noted above, the district court’s conclusion on this issue is not fa irly debatable. Moreover, Mr. Maynard has failed to point to any authority, inclu ding Rule 44.1, that supports his broad assertion that a court is required to hol d a hearing on the jurisdictional issue. As we have noted in other contexts, courts have wide discretion in structuring their consideration of jurisdictional c hallenges. See Holt v. United
States , 46 F.3d 1000, 1003 (10th Cir. 1995). Especially given the nature of Mr. Maynard’s claim, the district court was competent t o dispose of the issue without- 5 -

a hearing. In his final claim, Mr. Maynard reasserts that he w as denied effective assistance of counsel at both the trial and appellate level. Specifically, Mr. Maynard alleges that counsel was ineffective in fai ling to raise the issue of preindictment delay, file pre-trial motions, provide adefense strategy, safeguard Mr. Maynard’s right to a fair trial and right to be hea rd, file post-trial motions, adequately represent Mr. Maynard at sentencing, and provide effective assistance as appellate counsel. Aplt. Appl. for COA at 3. I n order to prevail on an ineffective assistance of counsel claim, Mr. Maynar d must show that his counsel’s representation fell below an objective standard forattorney behavior and “that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washingto n , 466 U.S. 668, 687 (1984). The district court concluded, after an exhaustive d iscussion, that Mr. Maynard could not show deficient performance or prejudice o r both. When viewed against the backdrop of our resolution of Mr. Maynard’s dir ect appeal, the district court’s conclusion is not fairly debatable. Finally, Mr. Maynard contends that the district cou rt misunderstood the facts regarding a $270,000 reinsurance refund at is sue in his criminal trial. See Aplt. Appl. for COA at 11. We disagree. In raisin g this issue, Mr. Maynard reiterates an argument that proved unsuccessful on direct appeal. The district- 6 -

court’s recitation of the facts is entirely in keep ing with those previously identified by this court. See Maynard , 2001 WL 690392, at *1-2. As the district court was bound by this court’s prior determination , so too are we. Finally, on September 3, 2004, Mr. Maynard filed a Fed. R. App. P. 28(j) supplemental authority letter seeking to raise (forthe first time) a Sixth Amendment challenge to his sentence based on the Supreme Court’s decision in Blakely v. Washington , ___ U.S. ___, 124 S. Ct. 2531 (2004). Prior to t he letter of September 3, Mr. Maynard did not challenge the d istrict court’s ability to determine the facts resulting in his sentence calcu lation. We have previously refused to consider an issue asserted for the firsttime in a Rule 28(j) letter. See United States v. Kimler , 335 F.3d 1132, 1138 n.6 (10th Cir. 2003). In that Mr. Maynard did not seek permission to file a brief pro perly raising the Blakelyissue, we decline to consider the matter further. See United States v. MaldonadoRamires , ___ F.3d ___, No. 03-1458, 2004 WL 2181755, at *3 n.1 (10th Cir. Sept. 29, 2004). Accordingly, Mr, Maynard’s motion for release pendi ng review is DENIED, the application for a COA is DENIED and the appeal is DISMISSED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge