United States v. Cory

141 F.3d 1184 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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. David Ray CORY, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. No. 97-2242. United States Court of Appeals, Tenth Circuit. Feb. 18, 1998. Before PORFILIO, KELLY, and HENRY, Circuit Judges. [1] ORDER AND JUDGMENT* [2] After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. [3] David Cory appeals from a judgment denying his application for relief under 28 U.S.C. § 2255 in which he claimed the judgment against him should be vacated because he was arrested by "Military forces." The district court held the issue should have been raised by direct appeal, denied relief and dismissed the petition. The matter is pending before us upon application for a certificate of probable cause. Having reviewed the entire matter, we conclude the district court's judgment was correct. We DENY a certificate of probable cause for the reasons stated by the district court in its memorandum opinion and order. We note also the legal capacity of arresting officers is moot after conviction. See Washington v. United States, 292 F.2d 452, 453 (8th Cir.1961). Footnotes [-s] * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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. 36.3