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    United States v. Thody, 10th Cir. (2014)

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    1) Walter Thody was convicted in 1991 of several crimes including bank robbery and using a firearm during a violent crime. His convictions were affirmed on appeal. 2) In 2013, Thody filed a motion to dismiss one of his convictions, which the district court denied, finding it lacked authority to modify his sentence. The district court also construed the motion as one under 28 U.S.C. § 2255 but denied it as time-barred. 3) Thody then filed another motion challenging two of his convictions. The district court again found no jurisdiction to consider the motion except under § 2255, and dismissed it as time-barred. The appellate court affirmed, finding § 2255 is the

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    United States v. Thody, 10th Cir. (2014)

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    1) Walter Thody was convicted in 1991 of several crimes including bank robbery and using a firearm during a violent crime. His convictions were affirmed on appeal. 2) In 2013, Thody filed a motion to dismiss one of his convictions, which the district court denied, finding it lacked authority to modify his sentence. The district court also construed the motion as one under 28 U.S.C. § 2255 but denied it as time-barred. 3) Thody then filed another motion challenging two of his convictions. The district court again found no jurisdiction to consider the motion except under § 2255, and dismissed it as time-barred. The appellate court affirmed, finding § 2255 is the

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    Filed: 2014-06-23 Precedential Status: Non-Precedential Docket: 14-7000

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    1) Walter Thody was convicted in 1991 of several crimes including bank robbery and using a firearm during a violent crime. His convictions were affirmed on appeal. 2) In 2013, Thody filed a motion to dismiss one of his convictions, which the district court denied, finding it lacked authority to modify his sentence. The district court also construed the motion as one under 28 U.S.C. § 2255 but denied it as time-barred. 3) Thody then filed another motion challenging two of his convictions. The district court again found no jurisdiction to consider the motion except under § 2255, and dismissed it as time-barred. The appellate court affirmed, finding § 2255 is the

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    20 views4 pages

    United States v. Thody, 10th Cir. (2014)

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    Scribd Government Docs
    1) Walter Thody was convicted in 1991 of several crimes including bank robbery and using a firearm during a violent crime. His convictions were affirmed on appeal. 2) In 2013, Thody filed a motion to dismiss one of his convictions, which the district court denied, finding it lacked authority to modify his sentence. The district court also construed the motion as one under 28 U.S.C. § 2255 but denied it as time-barred. 3) Thody then filed another motion challenging two of his convictions. The district court again found no jurisdiction to consider the motion except under § 2255, and dismissed it as time-barred. The appellate court affirmed, finding § 2255 is the

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    of 4

    FILED

    United States Court of Appeals


    Tenth Circuit

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    June 23, 2014

    Elisabeth A. Shumaker
    Clerk of Court

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    No. 14-7000
    (D.C. No. 6:91-CR-00051-FHS-1)
    (E.D. Okla.)

    v.
    WALTER ELIYAH THODY,
    Defendant - Appellant.

    ORDER AND JUDGMENT *

    Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in 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.
    In 1991, a federal jury found appellant, Walter Eliyah Thody, guilty of two
    counts of bank robbery, one count of possession of a firearm by a convicted felon,

    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. 32.1.

    two counts of using or carrying a firearm during commission of a violent crime,


    and one count of conspiracy. Thodys convictions were affirmed by this court.
    United States v. Thody, 978 F.2d 625 (10th Cir. 1992). Thody did not file a
    motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255.
    Instead, on May 19, 2011, he filed a petition for writ of coram nobis, seeking
    reversal of one of his convictions for using or carrying a firearm during a violent
    crime. The district court denied relief and this court affirmed. United States v.
    Thody, 460 F. Appx 776, 779-80 (10th Cir. 2012). We rejected Thodys
    argument the district court erred by not construing his coram nobis petition as a
    2255 motion, ruling he was barred from filing a 2255 motion because the oneyear limitations period set out in 28 U.S.C. 2255(f) had expired. Id. at 780-81.
    On August 2, 2013, Thody filed a Motion to Dismiss Conviction and
    Vacate Sentence on Count 6. After first concluding it had no power under 18
    U.S.C. 3582 to modify Thodys sentence, the district court next concluded the
    motion could not be construed as one filed pursuant to 28 U.S.C. 2255 because
    such a motion would be time barred. See United States v. Valadez-Camarena,
    402 F.3d 1259, 1261 (10th Cir. 2005) (holding district court did not err by
    refusing to recharacterize the defendants motion as one pursuant to 28 U.S.C.
    2255 because such a motion would, at least facially, be barred as untimely
    (quotation omitted)). Thody did not seek to appeal the district courts dismissal

    of his motion. However, on October 28, 2013, he initiated the instant matter by
    -2-

    filing a document styled, Motion to Vacate Convictions and Sentences for


    Counts 5 and 6 for Courts Lack of Original Jurisdiction to Unconstitutionally
    Twice Jeopardize Defendant for Same Conduct. In an attempt to circumvent the
    one-year statute of limitations imposed by the Antiterrorism and Effective Death
    Penalty Act (AEDPA), Thody urged the district court to construe his motion as
    a challenge to the jurisdiction of the trial court, not a motion for modification of
    sentence, or correction or [sic] erroneous conviction. The district court
    concluded there was no jurisdictional basis for Thodys motion other than 2255
    and dismissed it , again concluding it would be time barred if construed as a

    2255 motion. See id.


    This court reviews jurisdictional issues de novo. Full Life Hospice, LLC v.
    Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). It is well-settled that [t]he
    exclusive remedy for testing the validity of a [federal] judgment and sentence,
    unless it is inadequate or ineffective, is that provided for in 28 U.S.C. 2255.
    Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (quotation omitted).
    Because of the jurisdictional limitation imposed by the AEDPA, a federal prisoner
    must use 2255 to collaterally attack his conviction or sentence unless he can
    show that 2255 is either inadequate or ineffective. Hill v. Dailey, 557 F.3d 437,
    439-40 (10th Cir. 2009); see also Sines v. Wilner, 609 F.3d 1070, 1073-74 (10th
    Cir. 2010) (discussing the circumstances under which 2255 could be inadequate
    or ineffective). Because Thody has failed to show that 2255 is inadequate or
    -3-

    ineffective, the district court did not err in concluding it lacked jurisdiction to
    consider his motion.
    In its order, the district court also addressed the merits of Thodys double
    jeopardy claims. In his appellate brief, Thody argues extensively that the district
    courts analysis was erroneous. Because the district court correctly concluded
    there was no jurisdictional basis for Thodys motion, the portion of the courts
    order dated December 18, 2013, addressing Thodys claims on the merits is
    vacated and Thodys appellate argument is rendered moot. See Steel Co. v.
    Citizens for a Better Envt, 523 U.S. 83, 93-94 (1998) (The requirement that
    jurisdiction be established as a threshold matter spring[s] from the nature and
    limits of the judicial power of the United States and is inflexible and without
    exception.). The district courts order is otherwise affirmed. Thodys motion

    to proceed in forma pauperis on appeal is granted. All other outstanding


    motions are denied. 2
    ENTERED FOR THE COURT

    Michael R. Murphy
    Circuit Judge

    The Government requests that this court impose filing restrictions on


    Thody to curb his prolific and inappropriate motions. Because the district court
    imposed restrictions requiring Thody to petition that court before filing motions
    on issues previously ruled upon, the relief the Government requests from this
    court is unnecessary and is, therefore, denied.
    -4-

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