                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                    August 23, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,
                                                           No. 10-4199
    v.                                           (D.C. No. 2:04-CR-00170-DB-3)
                                                            (D. Utah)
    BRIAN B. TUCKER,

                Defendant-Appellant.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, EBEL and O’BRIEN, Circuit Judges.



         Brian B. Tucker, appearing pro se, appeals the district court’s order that

characterized his motion for return of funds as a second or successive motion

under 28 U.S.C. § 2255, and denied relief. Although we conclude that the court

should have construed the motion as one for the return of property under Rule

41(g) of the Federal Rules of Criminal Procedure, we agree that there is no relief



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
that can be afforded to Mr. Tucker under Rule 41(g), because the government no

longer possesses the funds and sovereign immunity bars a claim for monetary

relief.

                                       Background

          This case is before us again after we previously considered several appeals

by Mr. Tucker concerning his plea agreement and sentence arising from two bank

robberies in 2004. The details are outlined in four previous appeals. United

States v. Tucker, 363 F. App’x 643 (10th Cir. 2010); United States v. Tucker, 332

F. App’x 484 (10th Cir. 2009); United States v. Tucker, 298 F. App’x 794

(10th Cir. 2008); United States v. Tucker, 253 F. App’x 718 (10th Cir. 2007).

          Most recently, Mr. Tucker filed on June 28, 2010, a “Motion for Return of

Improperly Seized Funds,” R. Vol. 1 at 947, in which he sought the return of

$7,834 that was seized by the Federal Bureau of Investigation (FBI) from his

bank accounts at Zions Bank, one of the victims of the bank robberies. In March

2006, following Mr. Tucker’s guilty plea, the money was released to Zions Bank

and applied towards his restitution. But according to Mr. Tucker, the government

should not have released the funds because they were subject to the third-party

claims of “George Tucker, Conrad Tucker, and Shersta Tucker.” Id. at 948. He

claimed that the government should “return them to [him][] [o]r in the alternative

to order an evidentiary hearing in order to establish the validity of 3 rd party claims

to the funds and return said to their rightful claimant.” Id. at 950. The

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government objected on various grounds, including the fact that it no longer had

the funds and Mr. Tucker had no authority to file third-party claims. 1 The district

court characterized the motion as “essentially a successive 28 U.S.C. § 2255

motion,” id. at 1024, and dismissed it because it failed to meet the requirements

for filing a second request for habeas relief. This appeal followed.

                                      Analysis

      The government concedes that the district court erred in construing

Mr. Tucker’s motion for return of the funds as a second or successive request for

relief under § 2255. Although Mr. Tucker’s motion failed to mention Rule 41(g),

the gist of the requested relief was the return of the funds either to himself or

others. Under the liberal construction afforded pro se pleadings, we construe

Mr. Tucker’s motion as having been filed under Rule 41(g). Haines v. Kerner,

404 U.S. 519, 520-21 (1972); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1

(10th Cir. 2007).

      Under different circumstances, we might be compelled to remand the case

for further proceedings. However, it is unnecessary to do so in this case because

it is undisputed that the government no longer possesses the funds. As such, there

is no relief available to Mr. Tucker under Rule 41(g). See Clymore v. United


1
      On September 10, 2010, Mr. Tucker’s father, Thomas Conrad Tucker, filed
a “Notice of Third Party Claim on Funds and Request for Hearing or Return.” R.
Vol. 1 at 1016. The district court has not ruled on this notice, and we express no
opinion on the merits.

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States, 415 F.3d 1113, 1120 (10th Cir. 2005) (holding that “sovereign immunity

bars monetary relief in a Rule 41[(g)] proceeding when the government no longer

possesses the property”). As such, the district court lacked subject matter

jurisdiction to consider the motion.

      This case is REMANDED to the district court with instructions to vacate its

previous order and enter an order of DISMISSAL for lack of subject matter

jurisdiction.

                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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