FILED 

United States Court of Appeals 

Tenth Circuit 

PUBLISH APR5 2005 

UNITED STATES COURT OF APPEALS PATRICK FISHER 

Clerk 

FOR THE TENTH CIRCUIT 

UNITED ST ATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

JOSE DE JESUS 

VALADEZ-CAMARENA, 

Defendant-Appellant. 

No. 04-2113 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW MEXICO 

(D. Ct. No. CIV-04-175-JP) 

Jose de Jesus Valadez-Camarena, Prose. 

Before SEYMOUR, McCONNELL, and TYMKOVICH, Circuit Judges. 

McCONNELL, Circuit Judge. 

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After examining the appellant's brief and the appellate record, 1 this panel 

has determined unanimously that oral argument would not materially assist 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. 

Defendant appeals from a district court order denying his "Motion for 

Validation of the Indictment" and "Motion for Production of Public Records 

Documents." The district court held that Defendant's post-judgment attack on his 

indictment was untimely under the rules of criminal procedure and should not be 

construed as a motion for relief under 28 U.S.C. § 2255 for prudential reasons. 2 

We affirm both aspects of the district court's decision for essentially the reasons 

stated by the district court. Before explaining that rationale, however, we need to 

provide some procedural background. 

In 1997, a grand jury indicted Defendant for conspiring to distribute 

cocaine and for possessing cocaine with intent to distribute. After a mistrial, 

Defendant moved to dismiss the indictment on double jeopardy grounds. The 

The government refused to file a brief absent issuance of a certificate of 

appealability (COA). This refusal was unwarranted; as our analysis will show, 

this appeal does not involve a motion under 28 U.S.C. § 2255 and therefore does 

not implicate the COA requirement in 28 U.S.C. § 2253(c)(l)(B). 

2 The district court did not separately analyze the motion for production of 

documents in any detail, though it did cite two cases discussing the standards for 

discovery of grand jury documents. Defendant does not now challenge this aspect 

of the court's order, and we shall not pursue it further. 

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motion was denied, and he filed an interlocutory appeal. The district court found 

the appeal to be frivolous and, therefore , continued with the retrial pursuant to 

United States v. Hines, 689 F.2d 934, 937 (10th Cir. 1982). Following his 

conviction, Defendant filed another appeal, challenging the legal sufficiency of 

the prosecution's case at trial. We affirmed on both appeals. See United States v. 

Valadez-Camarena, 163 F.3d 1160 (10th Cir. 1998); United States v. 

Valadez-Camarena, 194 F.3d 1321 (10th Cir. 1999) (unpublished table decision), 

cert. denied, 528 U.S. 1143 (2000). In May 2002, Defendant filed a 28 U.S.C. 

§ 2255 motion to vacate his conviction, asserting that his trial and appellate 

counsel had been constitutionally deficient. That motion was rejected as 

time-barred. See Valadez-Camarena v. United States, No. 02cv595 (D.N.M. Aug. 

28, 2002) (adopting the magistrate judge's recommendation to dismiss the motion 

as untimely filed pursuant to the limitations provision in § 2255 para. 6.). 

Finally, in February 2004, Defendant filed the instant challenge to his indictment. 

Defendant's motion focused on two formal steps in the grand jury process: 

( 1) requiring the foreperson to sign the indictment, record the number of jurors 

concurring therein, and file the record with the clerk, Fed. R. Crim. P. 6(c), and 

(2) requiring the grand jury or foreperson to return the indictment in open court, 

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Fed. R. Crim. P. 6(f). 3 Noting an absence of docket entries in his case reflecting 

either the filing required by Rule 6( c) or the open court proceeding required by 

Rule 6(f), Defendant contended that these steps must not have taken place, that 

this made his indictment invalid, and that he was therefore entitled to have his 

conviction vacated. Although motions that allege defects "in the indictment" or 

"in instituting the prosecution" are generally waived unless presented before trial, 

Fed. R. Crim. P. 12(b)(3) and (e), Defendant argued that the procedural defects he 

alleged had left the indictment insufficient "to invoke the court's jurisdiction," 

which is a matter that may be raised "at any time while the case is pending," 

Fed. R. Crim. P. 12(b)(3)(B). 

The district court nevertheless concluded that the motion was untimely. 

The court did not address the claim that the alleged procedural defects undercut 

its jurisdiction over the prosecution so as to implicate the "at any time while the 

case is pending" savings clause of Rule 12(b)(3)(B).4 Instead, the court focused 

on the terms of that clause and, relying on unpublished circuit case law, held that 

3 On appeal, Defendant has attempted to interject a whole host of new issues. 

We limit our review to those matters raised and decided in the proceedings below. 

See, e.g., United States v. Rourke, 984 F.2d 1063, 1067 (10th Cir. 1992). 

4 While we need not express a conclusive view on the matter, we note that 

Defendant's claim regarding the jurisdictional nature of his procedural objections 

under Rule 6(c) and (f) is undercut by authority from other circuits. See United 

States v. Kah/on, 38 F.3d 467, 469 (9th Cir. 1994); United States v. Marshall, 

910 F.2d 1241, 1243 (5th Cir. 1990). 

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Defendant's case (long since reduced to judgment, affirmed on appeal, and 

rejected for certiorari review) was no longer pending when he challenged the 

indictment. See United States v. Lima-Pacheco, 81 Fed. Appx. 299 (I 0th Cir. 

2003); United States v. Preciado-Quinonez, 53 Fed. Appx. 6 (I 0th Cir. 2002); see 

also United States v. Wolff, 241 F.3d 1055, 1056-57 (8th Cir. 2001) (per curiam) 

(affirming denial of post-judgment challenge to indictment because "[a]fter final 

judgment was entered and [the defendant] did not file a direct appeal, the 

proceedings were no longer pending"). 

We agree with the district court that Defendant's motion was untimely 

under Rule 12(b)(3) and consequently barred under Rule 12(e). The district court 

properly enforced the plain terms of the applicable rules, consistent with the 

practice reflected in our case law. Moreover, we note that Defendant never 

asserted good cause to excuse his waiver. See Fed. R. Crim. P. 12(e) ("For good 

cause, the court may grant relief from the waiver."). 

As alluded to earlier, the district court also considered whether to construe 

Defendant's challenge to his indictment as a post-conviction motion to vacate 

under 28 U.S.C. § 2255. The court elected not to do so because, given the time 

since Defendant's conviction became final and the fact that he had sought relief 

under§ 2255 once before, such a motion would, at least facially, "be barred as 

untimely [under 28 U.S.C. § 2255 para. 6] or as second or successive [under 

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28 U.S.C. § 2255 para. 8]." R. doc. 4, at 2. And, as Defendant did not rely on 

§ 2255 in his motion, he had not had any reason to develop and present grounds to 

satisfy or circumvent the distinct legal barriers raised in § 2255 paras. 6 and 8. 

Under these circumstances, the district court's prudential decision not to construe 

Defendant's motion under§ 2255 cannot be deemed an abuse of discretion. This 

court has followed the same course when presented with similar circumstances on 

appeal. See Brown v. Warden, Springfield Med. Ctr. for Fed. Prisoners, 315 F .3d 

1268, 1270 (10th Cir. 2003) (declining to recast prose pleading as§ 2255 motion 

on appeal in light of imminent second-or-successive bar). 

Accordingly we DENY as moot Defendant's application for a certificate of 

appealability, and AFFIRM the judgment of the district court. Defendant's 

motion for appointment of counsel is DENIED. Defendant's motion for leave to 

appeal in forma pauperis is GRANTED, and Defendant is reminded that he 

remains obligated to continue making partial payments until the appellate fee is 

paid in full. 

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