Robert Vann Wilson v. United States, 946 F.2d 902, 10th Cir. (1991)

946 F.
2d 902
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Robert Vann WILSON, Petitioner-Appellant,

v.
UNITED STATES of America, Respondent-Appellee.
No. 90-6341.
United States Court of Appeals, Tenth Circuit.

Oct. 23, 1991.
Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges. *

ORDER AND JUDGMENT**
BALDOCK, Circuit Judge.
This matter is before the court for consideration of defendant's motion for leave
to proceed in forma pauperis. Defendant appeals from a district court order
denying his motion to vacate, correct, or set aside sentence under 28 U.S.C.
2255. The latter motion was filed by defendant after he voluntarily dismissed a
direct appeal from his conviction, following a guilty plea, of conspiracy to
import cocaine into the United States in violation of 21 U.S.C. 952, 963.
Defendant's 2255 motion sets out four "Challenges to the Jurisdiction of the
District Court," which assert the following grounds in support of defendant's
claim that the district court lacked subject matter jurisdiction over his offense:
(1) There is no specific provision for district court jurisdiction included in the
cited statutes or in Title 21 in general;
(2) The cited statutes exceed the constitutional reach of Congress, as delimited
by the Commerce Clause;
(3) The cited statutes constitute an impermissible encroachment upon state

authority under the Tenth Amendment; and
(4) Title 21 is null and void due to Congress' failure to enact it into positive
law.
We agree with the district court that these jurisdictional contentions are
frivolous on the merits.1 The trial court properly exercised jurisdiction over
defendant's offense pursuant to 18 U.S.C. 3231, which provides that "[t]he
district courts of the United States shall have original jurisdiction, exclusive of
the courts of the States, of all offenses against the laws of the United States."
See United States v. Monroe, 89-50597, slip op. at 11500-01 (9th Cir. Aug. 21,
1991); United States v. Desurra, 865 F.2d 651, 654 (5th Cir.1989); United
States v. Romero-Galue, 757 F.2d 1147, 1150 n. 10 (11th Cir.1985). Numerous
authorities support Congress' broad authority under the Commerce Clause to
regulate and proscribe illicit drug activities. See, e.g., United States v.
Thornton, 901 F.2d 738, 741 (9th Cir.1990); United States v. Atkinson, 513
F.2d 38, 39-40 (4th Cir.1975); United States v. Scales, 464 F.2d 371, 373-75
(6th Cir.1972); United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert.
denied, 409 U.S. 878 (1972). The tenth amendment raises no additional
impediment to enforcement of the federal drug laws. See In re Grand Jury
Proceedings, 801 F.2d 1164, 1169-70 (9th Cir.1986) (because regulation of
drugs falls within bounds of Commerce Clause, tenth amendment does not bar
prosecution for federal drug offense); Lopez, 459 F.2d at 951 (same). Finally,
the fact that Title 21 has not yet been "revised, codified, and enacted into
positive law" in accordance with the legislative agenda noted in the preface to
the United States Code does not render the substantive law it records a nullity.
The concern here is not with the validity of the underlying legislation but with
the authenticity of the Code, and, even prior to the contemplated revision, the
text of Title 21 remains "prima facie evidence of the laws" recorded therein.
Thomas J. Foley, Speaker of the House of Representatives, Preface to United
States Code at vii (1988). In this latter regard, defendant has not even suggested
that Title 21 is not a faithful representation of Congressional enactment.
Defendant's 2255 motion includes a number of constitutional references in

connection with his formally designated jurisdictional challenges. Construed as
additional grounds for relief, these matters are procedurally barred due to
defendant's failure to raise them on direct appeal. 2 See United States v. Frady,
456 U.S. 152, 168 (1982); see also United States v. Shelton, 848 F.2d 1485,
1490 (10th Cir.1988). For clarification, we note that in light of the Supreme
Court's recent abandonment of the "deliberate bypass" standard of Fay v. Noia,

372 U.S. 391 (1963), with respect to appellate procedural defaults in the
functionally related context of 28 U.S.C. 2254 proceedings, see Coleman v.
Thompson, 111 S.Ct. 2546, 2562-65 (1991), we reach our conclusion regarding
procedural bar under the "cause and prejudice" standard that now generally
controls the procedural default inquiry in the post-conviction context. See id.;
see also McCleskey v. Zant, 111 S.Ct. 1454, 1470 (1991) (cause and prejudice
standard governs in abuse of writ context as well).
9
For the reasons stated above, defendant's application for leave to proceed in
forma pauperis on appeal is DENIED, and this appeal is DISMISSED. The
government's motion to dismiss appeal for untimely filing of in forma pauperis
application is DENIED.
10
The mandate shall issue forthwith.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3
We note that errors which divest the sentencing court of jurisdiction may be
raised for the first time in a 2255 motion. See United States v. Harper, 901
F.2d 471, 472-73 (5th Cir.1990); United States v. Milestone, 626 F.2d 264, 267
n. 2 (3d Cir.), cert. denied, 449 U.S. 920 (1980); St. Cloud v. United States, 702
F.Supp. 1456, 1458 (D.S.D.1988)
These matters are also subject to the rule of waiver triggered by defendant's
guilty plea. See United States v. Davis, 900 F.2d 1524, 1525-26 (10th Cir.),
cert. denied, 111 S.Ct. 155 (1990). See generally United States v. Broce, 488
U.S. 563 (1989)

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946 F.

Robert Vann WILSON, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

Before LOGAN, JOHN P. MOORE and BALDOCK, Circuit Judges. *

by the Commerce Clause;

(3) The cited statutes constitute an impermissible encroachment upon state

Defendant's 2255 motion includes a number of constitutional references in

Court's recent abandonment of the "deliberate bypass" standard of Fay v. Noia,

The mandate shall issue forthwith.

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