                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            OCT 28 2004
                                 TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                      No. 04-6071
                                                 (D.C. Nos. 02-CV-1580-R and
 JESSE JOSEPH MAYNARD,                                  98-CR-164-R)
                                                         (W.D. Okla.)
       Defendant - Appellant.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.


      Petitioner-Appellant Jesse Joseph Maynard, a federal inmate appearing pro

se, seeks to appeal from the district court’s denial of his 28 U.S.C. § 2255 motion

to vacate, set aside, or correct his sentence. In order to merit a certificate of

appealability (COA), Mr. Maynard must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. 2253(c)(2). To make such a showing,

Mr. Maynard must demonstrate that reasonable jurists would find the district

court’s resolution of the constitutional issues contained in his motion debatable or

wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Miller-El v.

Cockrell, 537 U.S. 322, 327 (2003). Because we determine that Mr. Maynard has
not made such a showing, we deny a COA and dismiss the appeal. In view of our

resolution, we deny Mr. Maynard’s motion for release pending review. Fed. R.

App. P. 23(b).

      On September 1, 1999, Mr. Maynard was convicted by jury of conspiracy,

18 U.S.C. § 371, concealment of the assets of a bankruptcy estate, 18 U.S.C.

§§ 152 and 2, and embezzlement against a bankruptcy estate, 18 U.S.C. §§ 153

and 2. He was subsequently sentenced to 78 months in prison, and this court

affirmed the conviction on June 20, 2001. See United States v. Maynard, No. 00-

6082, 2001 WL 690392 (10th Cir. June 20, 2001).

      Mr. Maynard filed his § 2255 motion in the district court on October 25,

2002. After thoroughly examining the issues raised by Mr. Maynard and the trial

record including the transcript, the district court denied Mr. Maynard’s motion on

January 6, 2004. Mr. Maynard subsequently filed an application for a COA with

the district court. The district court failed to act on this application. Thus,

pursuant to the Tenth Circuit Emergency General Order of October 1, 1996, the

application was deemed denied. Mr. Maynard then made timely application for a

COA with this court.

      In his application for a COA, Mr. Maynard seeks to appeal the following

contentions rejected by the district court on the merits: (1) the bankruptcy court

and district court lacked subject matter jurisdiction; (2) the bankruptcy court and


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district court compromised his due process rights under the Fifth Amendment by

denying his jurisdictional challenge without a hearing; (3) he was denied

constitutionally effective assistance of counsel. Aplt. Appl. for COA at 3; Aplt.

Opening Br. at i. Having carefully considered the materials, we do not believe

that the district court’s determinations are fairly debatable.

      Mr. Maynard first posits in his application that the district court lacked

subject matter jurisdiction over the offenses charged in the indictment. He argues

that, because First American Casualty Company (“FACC”), the debtor in the

underlying bankruptcy petition, was a foreign corporation, the bankruptcy court

lacked jurisdiction, and, consequently, jurisdiction could not lie for the criminal

charges levied against Mr. Maynard, FACC’s President. The district court

concluded that Mr. Maynard’s collateral attack of the bankruptcy proceeding

offered no defense to his subsequent criminal conviction. This conclusion is not

fairly debatable. “[S]uch an attack may not be countenanced in any case against

the bankrupt, even in a criminal proceeding, where the indictment has charged the

bankrupt with a violation of the Bankruptcy Act.” United States v. Kramer, 279

F.2d 754, 757 (3d Cir. 1960)(emphasis added). Moreover, it appears from the

record that Mr. Maynard voluntarily sought the protection of the bankruptcy

court, signing the Chapter 11 petition on behalf of FACC. Under such

circumstances, Mr. Maynard is estopped from raising this attack where the record


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discloses a valid petition. See United States v. Vanderberg, 358 F.2d 6, 9 (7th

Cir. 1966).

      Mr. Maynard next asserts that, because both the bankruptcy court and the

district court denied his jurisdictional challenge without a hearing, his rights to

due process under the Fifth Amendment to the Constitution were in some manner

compromised. Mr. Maynard argues that Fed. R. Civ. P. 44.1, relevant to parties

seeking to raise an issue of foreign law, mandates that the court of first instance

suspend proceedings and conduct a hearing to determine the jurisdictional issue.

Mr. Maynard first raised this issue, tangentially, as part of his claim of ineffective

assistance of counsel, arguing that counsel was ineffective in pursuing a hearing

on the matter. The district court, addressing the timing of the trial court’s denial

of a motion to quash the indictment on the basis of jurisdiction, found no

prejudice in that the motion lacked all merit. As we have noted above, the

district court’s conclusion on this issue is not fairly debatable. Moreover, Mr.

Maynard has failed to point to any authority, including Rule 44.1, that supports

his broad assertion that a court is required to hold a hearing on the jurisdictional

issue. As we have noted in other contexts, courts have wide discretion in

structuring their consideration of jurisdictional challenges. See Holt v. United

States, 46 F.3d 1000, 1003 (10th Cir. 1995). Especially given the nature of Mr.

Maynard’s claim, the district court was competent to dispose of the issue without


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a hearing.

      In his final claim, Mr. Maynard reasserts that he was denied effective

assistance of counsel at both the trial and appellate level. Specifically, Mr.

Maynard alleges that counsel was ineffective in failing to raise the issue of pre-

indictment delay, file pre-trial motions, provide a defense strategy, safeguard Mr.

Maynard’s right to a fair trial and right to be heard, file post-trial motions,

adequately represent Mr. Maynard at sentencing, and provide effective assistance

as appellate counsel. Aplt. Appl. for COA at 3. In order to prevail on an

ineffective assistance of counsel claim, Mr. Maynard must show that his counsel’s

representation fell below an objective standard for attorney behavior and “that

counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

The district court concluded, after an exhaustive discussion, that Mr. Maynard

could not show deficient performance or prejudice or both. When viewed against

the backdrop of our resolution of Mr. Maynard’s direct appeal, the district court’s

conclusion is not fairly debatable.

      Finally, Mr. Maynard contends that the district court misunderstood the

facts regarding a $270,000 reinsurance refund at issue in his criminal trial. See

Aplt. Appl. for COA at 11. We disagree. In raising this issue, Mr. Maynard

reiterates an argument that proved unsuccessful on direct appeal. The district


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court’s recitation of the facts is entirely in keeping with those previously

identified by this court. See Maynard, 2001 WL 690392, at *1-2. As the district

court was bound by this court’s prior determination, so too are we.

      Finally, on September 3, 2004, Mr. Maynard filed a Fed. R. App. P. 28(j)

supplemental authority letter seeking to raise (for the first time) a Sixth

Amendment challenge to his sentence based on the Supreme Court’s decision in

Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004). Prior to the letter

of September 3, Mr. Maynard did not challenge the district court’s ability to

determine the facts resulting in his sentence calculation. We have previously

refused to consider an issue asserted for the first time in a Rule 28(j) letter. See

United States v. Kimler, 335 F.3d 1132, 1138 n.6 (10th Cir. 2003). In that Mr.

Maynard did not seek permission to file a brief properly raising the Blakely issue,

we decline to consider the matter further. See United States v. Maldonado-

Ramires, ___ F.3d ___, No. 03-1458, 2004 WL 2181755, at *3 n.1 (10th Cir.

Sept. 29, 2004).

      Accordingly, Mr, Maynard’s motion for release pending review is DENIED,

the application for a COA is DENIED and the appeal is DISMISSED.


                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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