* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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. 

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

### JUN 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK T. JONES, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 96-5268 (D.C. No. 93-CR-35-3-C) (N.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges.

Plaintiff-Appellant Patrick T. Jones was convicted by a jury in the United States District Court for the Northern District of Oklahoma, on three counts stemming from an armed robbery of a Tulsa, Oklahomacredit union. He was sentenced to 117 months in prison. His conviction and sentence were affirmed by this court on direct appeal. United States v. Jone s , No. 93-5159 (10th Cir. Mar. 8, 1994) (unpublished Order and Judgment).1 The Minute Order was apparently neither reduced to writing, nor conveyed in any

way to either Jones or the government. It is not contained in the Record on Appeal, which was prepared by the Deputy Clerk of the district court. On September 30, 1996, Jones was first informed by a letter from the Deputy Clerk of the district court that a Minute Order denying Jones’s motion as moot had been entered on September 5, 1996. Further, the government did not file its Response to Defendant’s Motion To Vacate Sentence until September 11, 1996, six days after the Minute Order was entered. - 2 - Subsequently, on January 12, 1996, Jones moved to v acate his convictions on all three counts “based upon ineffective assista nce of counsel, perjury by omissions, [and] conspiracy.” (R.O.A. Doc. 86). The district court denied Jones’s motion. United States v. Jones , No. 93-CR-35-5-C (N.D. Okla. Feb. 14, 1996) (unpublished Order). Jones did not appeal th e denial of the motion. Instead, on August 22, 1996, Jones filed in the dis trict court a pro se “Motion in Support of 2255,” again seeking to vacat e his conviction with respect to the bank robbery count. (R.O.A. Doc. 91). In t his motion, Jones claimed that the government had failed at trial to establish that the credit union which Jones robbed was insured by the National Credit Union Adm inistration Board, an element necessary to support Jones’s conviction und er 18 U.S.C. §§ 2113(a), 2113(g) (1994 & Supp. 1997). This claim had been a lluded to, albeit not squarely presented, in Jones’s January 12, 1996 “Motion To V acate Judgment.” In a Minute Order, the district court denied as moo t Jones’s August 22, 1996 motion. 1 Jones filed timely notice of appeal. Although th e district court denied Jones’s request for a certificate of appeala bility, United States v. Jones ,- 3 -

No. 93-CR-35-C (N.D. Okla. Dec. 4, 1996) (Order), i t granted Jones’s application to proceed on appeal in forma pauperis , “provided that Jones satisfies the conditions set forth in [28 U.S.C.] § 1915(b).” Un ited States v. Jones , No. 93- CR-35-C (N.D. Okla. Jan. 7, 1997) (Order). We exer cise appellate jurisdiction pursuant to 28 U.S.C. § 1291 (1994). As a threshold matter, we note that the present mot ion is actually Jones’s second motion brought pursuant to 28 U.S.C.A. § 2255 (Sup p. 1997). Although neither Jones’s January 12, 1996 “Motion to Vacate Judgment” (R.O.A. Doc. 86) nor the district court’s Order denying that motion, United States v. Jones , No. 93- CR-35-5-C (N.D. Okla. Feb. 14, 1996), made any expr ess reference to 28 U.S.C.A. § 2255, that provision provides the sole m echanism by which “[a] prisoner in custody under sentence of a court estab lished by Act of Congress claiming the right to be released upon the ground t hat the sentence was imposed in violation of the Constitution or laws of the Uni ted States . . . may move the court which imposed the sentence to vacate, set asi de, or correct the sentence.” 28 U.S.C.A. § 2255 (Supp. 1997). We therefore cons true Jones’s January 12, 1996 “Motion to Vacate Judgment” as a motion brought pursuant to 28 U.S.C.A. § 2255 (Supp. 1997). Correspondingly, Jones’s Augu st 22, 1996 “Motion in Support of 2255,” which is presently at issue, is J ones’s second motion brought pursuant to 28 U.S.C.A. § 2255 (Supp. 1997).2In addition, 28 U.S.C.A § 2255 (Supp. 1997) was amended on April 24, 1996 to

provide that “[a] 1-year period of limitation shall apply to a motion under this section,” and that other than in certain exceptional circumstances not present here, “[t]he limitation period shall run from . . . the date on which the judgment of conviction becomes final.” Id. In the present case, Jones’s judgment of conviction became final on March 8, 1994, when it was affirmed by this court. Nonetheless, Jones is not time-barred from filing the present motion, because the one-year limitations period reflected in the amended 28 U.S.C.A. § 2255 is not to be applied fully retroactively. United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). Rather. “prisoners whose convictions became final on or before April 24, 1996 must file their § 2255 motions before April 24, 1997.” Id. Jones has complied with this requirement. - 4 - A second or successive motion brought pursuant to 2 8 U.S.C.A. § 2255 (Supp. 1997) must be dismissed unless it contains: (1) newly discovered evidence that, if proven and v iewed in light of the evidence as a whole, would be sufficient to est ablish by clear and convincing evidence that no reasonable factfinder w ould have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroact ive to cases on collateral review by the Supreme Court, that was pr eviously unavailable. 28 U.S.C.A. § 2255 (Supp. 1997); see also 28 U.S.C.A. § 2244 (Supp. 1997) (setting forth procedure that must be used in orderto bring a second or successive petition under 28 U.S.C.A. § 2255). 2 In the present case, Jones does not claim that any “new rule of constitutional law” affects his case. He does, how ever, claim that he has recently discovered new evidence tending to suggest that the credit union which he robbed was not federally insured. We disagree with Jones that “if proven and viewed in3 We are required under the Prison Litigation Reform Act of 1996 (“PLRA”) to

dismiss a civil action or appeal filed by a prisoner in forma pauperisonce we determine that the action or appeal is frivolous. 28 U.S.C.A. §§ 1915(e)(2)(B)(i), 1915A(b)(1) (Supp. 1997). Further, under PLRA, a prisoner who has had three in forma pauperiscivil actions or appeals dismissed as frivolous may bring no further civil actions or appeals without pre-paying the filing fees in full, “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C.A. § 1915(g) (Supp. 1997). However, we have recently held that actions brought pursuant to 28 U.S.C.A. § 2255 (Supp. 1997) are not “civil actions” within the meaning of the filing fee provisions of PLRA. United States v. Simmonds , 111 F.3d 737, 741-43 (10th Cir. 1997). Thus, our determination that Jones’s present action is frivolous does not affect Jones’s status under 28 U.S.C.A. § 1915(g) (Supp. 1997). - 5 - light of the evidence as a whole,” his new evidence “would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” 28 U .S.C.A. § 2255 (Supp. 1997). Indeed, we believe that Jones’s claim is frivolous. 3 First, we note that in a formal Stipulation Agreeme nt signed by an Assistant United States Attorney, by Jones’s attorney, and by Jones himself , Jones stipulated prior to trial that: The parties hereby agree and stipulate that on Dece mber 23, 1992, the Communications Federal Credit Union was charter ed by the State of Oklahoma and by the United States of America. The parties further agree and stipulate that on Dec ember 23, 1992 the Communications Federal Credit Union was federally i nsured by the National Credit Union Administration.- 6 -

(R.O.A. Doc. 92 Ex. E). This stipulation relieved the government of its burden of proving, at Jones’s trial, the “federal insurance” element of 18 U.S.C. §§ 2113(a), 2113(g) (1994 & Supp. 1997). Second, we note that in its response to Jones’s Mo tion, despite having been relieved of its burden to do so by Jones’s prior st ipulation, the government came forward with apparently irrefutable evidence tendin g to prove that on December 23, 1992 the Communications Federal Credit Union was federally insured by the National Credit Union Administration. (R.O.A. Doc . 92 and attached exhibits). For these reasons, we DENY Jones’s request for cert ificate of appealability. Jones’s appeal is hereby DISMISSED. The Minute Ord er of the district court denying Jones’s second motion for relief under 28 U .S.C.A. § 2255 is therefore
FINAL. The mandate shall issue forthwith.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge