* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JUN 3 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DANNY LYNN MCGHEE,

Defendant-Appellant. No. 02-7084 (D.C. No. 96-CR-55-S) (E.D. Okla.)

ORDER AND JUDGMENT *

Before BRISCOE , PORFILIO , and ANDERSON , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Effective December 1, 2002, Rule 41(e) was amended and relocated to Rule

41(g). We refer to the formulation, i.e., Rule 41( e), effective at the time of Mr. McGhee’s June 11, 2001 filing. -2- Danny Lynn McGhee, a federal prisoner proceeding pr o se, appeals the denial of his motion for return of property, construed as a post-forfeiture motion filed pursuant to Fed. R. Crim. P. 41(e). 1 We affirm. In April 1996, $50,800 was seized from Mr. McGhee p ursuant to a search warrant as proceeds of, or property used to facilit ate, methamphetamine distribution. The United States initiated an admin istrative forfeiture proceeding in June 1996, which resulted in a judgment of forfeitu re in November 1996. Mr. McGhee later pleaded guilty to two counts of us ing a communication facility to facilitate drug distribution. This court affirm ed his conviction and sentence on direct appeal. United States v. McGhee , No. 97-7023, 1997 WL 758852 (10th Cir. Dec. 9, 1997) (unpublished disposition). Mr. McGhee sought habeas relief pursuant to 28 U.S.C. § 2255, which was denied by the district court. See United States v. McGhee , No. 99-7149, 2000 WL 1701668 (10th Cir. Nov. 14, 2000) (unpublished disposition) (denying his request for a certificate of appealability). Mr. McGhee then filed the motion for return of prop erty. He alleged the currency was not validly forfeited because he did n ot receive actual notice of the administrative forfeiture proceedings; that the sei zure of the currency was unlawful because the search warrant was not support ed by probable cause, was-3-

overly broad and was illegally executed; and that t he forfeiture constituted a constitutionally excessive fine. “Where criminal proceedings against the movant have already been completed, a district court should treat a Rule 41( e) motion as a civil complaint” for equitable relief from forfeiture. United States v. Clark , 84 F.3d 378, 381 (10th Cir. 1996). [W]here the property sought to be returned has beenadministratively forfeited, the Court should not exercise Rule 41(e) jurisdiction if the movant has failed to challenge the forfeiture throu gh the appropriate administrative and judicial procedures. However, f ederal question jurisdiction pursuant to 28 U.S.C. § 1331 is available for the limited purpose of considering collateral due process attac ks; that is, deciding whether the forfeiture offended due process rights. If an administrative forfeiture does not have any procedu ral defects, other challenges to the forfeiture, which could have beenaddressed under the statutory and regulatory procedures, must be co nsidered waived. United States v. Deninno , 103 F.3d 82, 84-85 (10th Cir. 1996) (citations om itted). The district court denied the motion, ruling that M r. McGhee received notice reasonably calculated to apprise him of the forfeiture proceedings and to afford him an opportunity to present his objections. Id. at 85. Because Mr. McGhee received constitutionally adequate notice of the fo rfeiture, his remaining challenges were waived when he failed to file a tim ely claim in the forfeiture proceedings. Id. at 84-85. The district court further ruled that Mr . McGhee was collaterally estopped from relitigating the issue o f notice and the legality of the search, because he raised these same issues in his § 2255 petition.-4-

We review the due process argument de novo

. Clark , 84 F.3d at 381. We have considered the district court order, the parti es’ briefs and contentions, and the entire record on appeal. Finding no error, we AFFI RM for substantially the reasons set out in the district court’s Order datedJune 19, 2002.

Entered for the Court

Mary Beck Briscoe Circuit Judge