                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                       January 26, 2006
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,                         No. 05-5012
 v.                                              (D.C. Nos. 02-CV-499-H;
                                                      97-CR-04-H(J))
 JACKIE LYNN MARTIN,                                   (N.D. Okla.)

          Defendant - Appellant.


                                      ORDER *


Before EBEL, McKAY and HENRY, Circuit Judges.


      Defendant-Appellant Jackie Lynn Martin requests a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his motion for

relief under 28 U.S.C. § 2255. For the reasons set forth below, this request is

DENIED.

                                   BACKGROUND




      *
       After examining appellant’s brief and the 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)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order is not binding precedent, except under the doctrines of law of the case, res
judicata, and collateral estoppel.
      In early 1997, Martin was indicted on charges of armed bank robbery,

interference with commerce by threats or violence, using a firearm during a crime

of violence, and possession of a firearm by a convicted felon. These charges

stemmed from robberies of a bank and several businesses in Tulsa, Oklahoma.

After a jury trial at which Martin was represented by appointed counsel, Martin

was convicted on all eight counts charged in the indictment. He was sentenced to

life in prison without parole pursuant to 18 U.S.C. § 3559(c), which mandates

such a sentence for certain criminals who have two or more previous serious

convictions.

      Martin’s counsel filed a notice of appeal with this court on June 16, 1997.

Days after filing this notice, counsel was informed that the statute under which

Martin was convicted of one of the predicate convictions used to trigger § 3559(c)

had been declared unconstitutional and that convictions obtained under that

statute were presumptively void. Counsel filed a motion with the district court to

correct the sentence; we remanded the case to the district court for consideration

of that motion. United States v. Martin, No. 97-5117, 1998 WL 39229 (10th Cir.

Jan. 30, 1998) (unpublished).

      After remand, the government chose not to seek to sentence Martin under

§ 3559(c). Martin was thus resentenced, solely based on the sentencing




                                        -2-
guidelines, to fifty years in prison. 1 Martin again appealed to this court; we

affirmed his guilt but remanded to the district court for a determination of

whether Martin had desired to waive his right to counsel and proceed pro se at his

sentencing hearing. 2 United States v. Martin, No. 98-5066, 2000 WL 33526 (10th

Cir. Jan. 18, 2000) (unpublished).

      The district court subsequently determined that Martin did not wish to

proceed pro se, but rather desired the appointment of a new counsel. The court

granted this request, held a new sentencing hearing, and again sentenced Martin

to 50 years in prison. Martin appealed, and we affirmed. United States v. Martin,

18 F. App’x 686 (10th Cir. Aug. 20, 2001) (unpublished).

      Martin then filed a motion to vacate his sentence pursuant to 28 U.S.C.

§ 2255, raising seventeen claims—sixteen alleging ineffective assistance of

counsel, and one alleging trial court bias. Martin filed an amended motion nearly

a year later, alleging thirteen claims that he argued merely expanded upon the

original filing. He then filed a “Notice of Fraud Against the United States,”

principally alleging that the indictment did not charge that the bank Martin was

accused of robbing was insured by the Federal Deposit Insurance Corporation

      1
          The former conviction was not used in arriving at this new sentence.
      2
       We also vacated one of Martin’s convictions for possession of a firearm.
See Martin, 2000 WL 33526 at *4. However, because the sentence for this
conviction ran concurrently with the sentence for the other seven counts, the
vacatur had no effect on his term of actual imprisonment.

                                          -3-
(“FDIC”), which he alleges is a necessary element to a federal bank robbery

charge. The essence of his argument was that the government committed fraud by

prosecuting him based on an indictment that did not charge the necessary

elements to establish federal jurisdiction. Martin also filed a motion to dismiss

his indictment, claiming that it was defective because one of the counts

erroneously stated that he had been previously convicted of bank robbery in the

Eastern District of Illinois.

      After thoroughly reviewing all of the claims raised in Martin’s two § 2255

motions, the district court denied both. The court also denied his motion to

dismiss the indictment, noting that he had not raised the issue on direct appeal

and was thus precluded from raising it on collateral appeal. Martin then filed a

motion to alter or amend the judgment, which the district court denied.

                                   DISCUSSION

      In requesting a COA, Martin claims that the district court erred in not fully

addressing his claims of fraud and of a defective indictment and he takes issue

with the district court’s ruling on his ineffective assistance claims. “[A] COA

may not issue unless the applicant has made a substantial showing of the denial of

a constitutional right,” that is, “[t]he petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 483, 484 (2000). We


                                         -4-
conclude that no reasonable jurist would doubt the district court’s disposition of

Martin’s claims.

                               Defective Indictment

      As for Martin’s challenges to errors in the indictment, the district court

correctly ruled that because he had not raised these claims on direct appeal, he

was precluded from raising them at this stage of the proceedings. In general,

“claims not raised on direct appeal may not be raised on collateral review unless

the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S.

500, 504 (2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).

Even assuming Martin could show cause, he cannot show “‘actual prejudice’

resulting from the errors of which he complains.” Frady, 456 U.S. at 168.

      Martin primarily argues that, without a specific statement in the indictment

that the bank he robbed was FDIC-insured, the indictment did not charge that a

federal crime had been committed and thus the federal court lacked jurisdiction to

try the case. Martin is simply incorrect. The indictment clearly charges Martin

with robbing “Citizens Bank of Tulsa, . . . the deposits of which were then

insured by the Federal Deposit Insurance Corporation.” 3 Martin also challenges


      3
        Martin seems to suggest that the bank itself, rather than simply the bank’s
deposits, must be FDIC insured in order for the robbery to be a federal crime.
Again, this is incorrect. The federal bank robbery statute defines a bank as, inter
alia, “any institution the deposits of which are insured by the Federal Deposit
                                                                       (continued...)

                                        -5-
one of the counts in the indictment insofar as it suggested that he was convicted

of bank robbery in the Eastern District of Illinois; he claims there is no record of

any such crime occurring. Assuming this were true, it could not have affected

Martin’s conviction on this count. The reference to this crime was only to show

that Martin had been convicted of a crime punishable by more than one year in

prison in order to charge Martin with a violation of 18 U.S.C. § 922(g)(1)

(possession of a firearm by a convicted felon). The indictment charges two prior

bank robbery convictions—one in the Southern District of Illinois and one in the

Eastern District of Illinois. One is enough to trigger § 922(g)(1), and Martin

expressly admits to the Southern District conviction.

      As neither of the alleged errors in the indictment actually prejudiced

Martin, and indeed one alleged error did not occur at all, the district court was

correct in ruling that he is procedurally barred from raising these claims on

collateral review.

                               Ineffective Assistance

      In requesting a COA, Martin primarily argues that his original trial counsel

committed procedural errors in his handling of the post-trial motions once it was

discovered that the statute on which one of Martin’s two predicate convictions



      3
       (...continued)
Insurance Corporation.” 18 U.S.C. § 2113(f) (emphasis added).

                                         -6-
had been based was later found unconstitutional. However, as the district court

correctly noted, we remanded the case for resentencing after this discovery, and

Martin was resentenced without regard to this prior conviction. Thus, as the

district court correctly found, there is simply nothing to suggest that counsel’s

performance was prejudicial as required to succeed on an ineffective assistance

claim. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To the extent

that Martin challenges the district court’s other ineffective assistance of counsel

rulings, we have reviewed the district court’s order and find that no reasonable

jurist could find them debatable or wrong.

                                  CONCLUSION

      As it is not debatable whether the district court was correct in its

disposition of Martin’s claims, we DENY his request for a certificate of

appealability and DISMISS this appeal. We do, however, GRANT his motion to

proceed in forma pauperis.

                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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