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

### OCT 1 1997 

### PATRICK FISHER Clerk PUBLISH

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. MURLEEN KAY KUNZMAN,

Defendant-Appellant. No. 96-1310

Appeal from the District Court of the District of Colorado (D.C. No. 95-WY-2077-CB)

Submitted on the Briefs: Murleen Kay Kunzman, pro se. Henry L. Solano, United States Attorney, and Charlo tte J. Mapes, Assistant U.S. Attorney, Denver, Colorado, for Plaintiff-Appellee.
Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

LOGAN, Circuit Judge.1 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- Defendant Murleen Kay Kunzman appeals from the district court’s order denying her motion to set aside her criminal convic tions pursuant to 28 U.S.C. §
2255. 1 Her appeal raises issues of subject matter juris diction, double jeopardy, ineffective assistance of counsel, res judicata, an d collateral estoppel. Because none are meritorious we affirm. Defendant and her husband (“Kunzmans”) defrauded nu merous investors who purchased limited partnership investments in Re al Estate Mortgage Investment Conduits (“REMICs”) from them. The Kunz mans conducted a Ponzi scheme, in which money from later investors was use d to pay earlier investors. After the scheme collapsed, the Kunzmans filed for bankruptcy protection. See United States v. Kunzman , 54 F.3d 1522, 1525 (10th Cir. 1995) (detailing fa cts). A number of the investors filed an adversary procee ding in the Kunzmans’ bankruptcy, alleging that the money they had invest ed in the REMICs constituted a non-dischargeable debt. The bankruptcy court awa rded judgment in favor of twelve of the plaintiffs, finding that the debts an d damages awarded were non-dischargeable. Approximately one and one-half years after entry of the judgment in the2 In the recent case of Lindh v. Murphy , 117 S. Ct. 2059 (1997), the Supreme

Court determined that the amendments to Chapter 153 of Title 28 of the United States Code contained in the Antiterrorism and Effe ctive Death Penalty Act of 1996 (AEDPA), which include the requirement that a habeas petitioner obtain a certificate of appealability, “generally” do not ap ply to cases filed before AEDPA’s effective date, April 24, 1996. See id. at 2068. Prior to Lindh , decisions of this court had applied the certificate of appealability requirement to a § 2255 case in which the underlying petition was fi led before AEDPA’s effective date, but the notice of appeal was filed after AEDP A, see United States v. Riddick , 104 F.3d 1239 (10th Cir. 1997), and to a § 2254 c ase in which both the underlying petition and notice of appeal were filed before AEDPA, see Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997). The majority of circuits that have considered this issu e since Lindhhave interpreted Lindhto hold that regardless of when the notice of appe al was filed, if a §§ 2254 or 2255 petition was filed in the district court be fore AEDPA’s effective date, no certificate of appealability is required. See Arredondo v. United States , ___F.3d___, Nos.96-2126, 96-2583, 1997 WL 459716, at *1 (6th Cir. Aug. 13, 1997); United States v. Gonzalez , No. 96-56461, 1997 WL 415334, at *1 n.1 (9th (continued...) -3- bankruptcy proceeding, a federal grand jury returne d a superseding indictment charging the Kunzmans and one of their employees wi th numerous counts of securities fraud, mail fraud, bank fraud, and money laundering. Defendant pleaded guilty to two counts of money laundering an d three counts of securities fraud. Her sentence included an order that she payrestitution to some of her victims. She later filed a petition with the distr ict court which it properly construed as a § 2255 motion raising the issues we treat in this appeal. Defendant has requested that we issue her a certifi cate of appealability so that she may prosecute her appeal. She filed her ha beas petition on August 15, 1995, and therefore does not need a certificate of appealability to proceed. 22 (...continued)

Cir. July 24, 1997) (unpublished opinion); United S tates v. Roberts , 118 F.3d 1071 (5th Cir. 1997) (section 2255 cases); Blankens hip v. Johnson , 118 F.3d 312, 315 n.2 (5th Cir. 1997); cf. Nelson v. Walker , ___F.3d___, Nos. 96-2354, 96- 1213, 1997 WL 442686, at *4 (2d Cir. Aug. 7, 1997) (holding no certificate of appealability needed when both petition and notice of appeal filed prior to AEDPA) (section 2254 cases); see also Order Reinstating Local Rule 22 (1st Cir. July 22, 1997). This view is not shared by the Eig hth Circuit, which held recently in Tiedeman v. Benson , ___F.3d___, No. 96-3977, 1997 WL 437181 (8th Cir. Aug. 6, 1997), that because the certificate of appe alability requirement is procedural and the LindhCourt qualified its holding with the word “general ly,” the certificate of appealability requirement applie s to appeals in § 2254 cases in which the notice of appeal was filed after AEDPA, e ven if the underlying petition was pending before AEDPA’s enactment. Upon conside ration, we join the majority of circuits and hold that §§ 2254 and 2255 petitioners who filed their petitions in district court prior to AEDPA’s effect ive date, regardless of whether they filed their notice of appeal before or after A EDPA, do not need a certificate of appealability to proceed with their appeal. We have circulated this footnote to the en banc court, which has unanimously agreed that to the extent Lennoxand Riddick , and any other of our cases, are inconsistent with the rule announced herein, they are overruled. -4- We first consider whether defendant’s claims are pr ocedurally barred by her failure to raise them in a direct appeal. “Section 2255 motions are not available to test the legality of matters which should have b een raised on direct appeal.” United States v. Warner , 23 F.3d 287, 291 (10th Cir. 1994). Defendant has failed to show cause and prejudice, which would excuse herfailure to raise her claims on direct appeal. See id. She contends, however, that her counsel was ineff ective for failing to raise her arguments. Ineffective as sistance of counsel claims may be reviewed collaterally in a § 2255 motion. See United States v. Galloway , 56 F.3d 1239, 1241 (10th Cir. 1995).-5-

There is, however, a further procedural bar to be c onsidered. Defendant’s entry of an unconditional guilty plea to the charge s against her waived all nonjurisdictional defenses. See United States v. Robertson , 45 F.3d 1423, 1434 (10th Cir.), cert. denied , 116 S. Ct. 133 (1995). Defendant’s subject matte r jurisdiction and double jeopardy claims are jurisdi ctional. See United States v.
Broce , 781 F.2d 792, 797 (10th Cir. 1986) (guilty plea d oes not waive right to assert double jeopardy claim). Her claims of res j udicata and collateral estoppel, are nonjurisdictional. As to the jurisdictional is sues, we apply the ineffective assistance of counsel test announced in Strickland v. Washington , 466 U.S. 668 (1984), asking whether her counsel’s p erformance “fell below an objective standard of reasonableness,” see id. at 688, and whether the deficient performance resulted in prejudice, see id. at 691-92. We consider the nonjurisdictional issues only in the context of herclaim of constitutionally ineffective assistance of counsel; we consider whether her counsel’s ineffectiveness would justify setting aside her gui lty plea. See United States v. Gordon , 4 F.3d 1567, 1570 (10th Cir. 1993) (describing te st for ineffectiveness where guilty plea is challenged), cert . denied , 510 U.S. 1184 (1994). Defendant contends that Congress exceeded its Comme rce Clause authority, when it enacted the securities fraud legislation un der which she was convicted.
See 15 U.S.C. § 78j(b). “Where economic activity subs tantially affects interstate-6-

commerce, legislation regulating that activity will be sustained.” United States v. Lopez , 115 S. Ct. 1624, 1630 (1995). The Commerce Claus e clearly empowers Congress to regulate the sale of securities. See Sloan v. SEC , 535 F.2d 676, 678 (2d Cir.), cert. denied , 429 U.S. 885 (1976). Defendant’s challenge is wi thout merit. Defendant next contends that the district court lac ked jurisdiction over the prosecution against her, because it arose under or was related to her bankruptcy proceeding. Bankruptcy courts have jurisdiction ov er bankruptcy cases and some civil matters arising in or related to such cases. See 28 U.S.C. §§ 157, 1334. Neither of these statutes, however, grants bankrupt cy courts exclusive jurisdiction over post-discharge criminal matters involving the debtor. Defendant’s argument is frivolous. Defendant contends that her criminal prosecution wa s an impermissible attempt to collect a discharged debt. See 11 U.S.C. § 524(a)(2) (discharge in bankruptcy operates as injunction against collectio n proceedings). She fails to show that the principal motivation behind her prose cution was to collect on a discharged debt. See Brinkman v. City of Edina (In re Brinkman) , 123 B.R. 318, 322 (Bankr. D.Minn. 1991) (stating “principal motiv ation” test). The government may seek restitution in favor of victims who hold d ebts of the defendant, even if-7-

such debts have been discharged in bankruptcy. See United States v. Carson , 669 F.2d 216, 217 (5th Cir. 1982) (conditioning probati on on restitution). Defendant next argues that her prosecution violatedthe Double Jeopardy Clause, because she already had been “punished” by the judgment entered against her in the bankruptcy proceedings. We agree with t he First Circuit that “[a] monetary sanction which has no punitive function, i .e., has no purpose other than restitution or compensation for the loss engenderedby the defendants’ conduct is not punishment within the ambit of the double jeopa rdy clause.” United States v. Kayne , 90 F.3d 7, 11 (1st Cir. 1996), cert. denied , 117 S. Ct. 681 (1997). The bankruptcy judgment against defendant clearly serve d the remedial function of compensating her victims. Because defendant was no t “punished” by the entry of judgment, the later criminal prosecution was not fo rbidden by the Double Jeopardy Clause. See United States v. Ursery , 116 S. Ct. 2135, 2141-42 (1996) (discussing effect of civil forfeiture action). Finally, defendant argues that the discharge order precluded the criminal prosecution on principles of res judicata or collat eral estoppel. Res judicata (claim preclusion) applies only when (1) the partie s in the instant action were parties or in privity with a party in the prior adj udication; (2) the claims are identical; and (3) there is a final judgment on the merits. See Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1520 (10th Cir. 1990). The claims raised in-8-

defendant’s bankruptcy were not identical to those raised in the criminal case.
See United States v. Tatum , 943 F.2d 370, 381 (4th Cir. 1991) (“A bankruptcy proceeding and a criminal prosecution are fundament ally different proceedings, both in purpose and procedure, and the ‘causes of a ction’ resolved by each are totally different.”). Defendant’s collateral estop pel (issue preclusion) claim fails for similar reasons: the issue of whether a discharge should be granted is not “identical” to the issue of whether a defendant is criminally liable. See Sil-Flo , 917 F.2d at 1520 (collateral estoppel requires identity of issues). Defendant has not shown that her counsel was ineffe ctive in failing to raise the non-meritorious issues she presents. The judgm ent of the district court is therefore AFFIRMED. Defendant’s motion for expedit ed procedures is DENIED.