                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                 August 21, 2014
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                     No. 14-5074
                                           (D.C. Nos. 4:13-CV-00708-GKF-FHM
 RAMON VELASCO,                                  & 4:12-CR-00132-GKF-1)
                                                        (N.D. Okla.)
       Defendant - Appellant.

         ORDER DENYING CERTIFICATE OF APPEALABILITY
                   AND DISMISSING APPEAL


Before KELLY, BALDOCK, and BACHARACH, Circuit Judges.


      Ramon Velasco, a federal prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2255 habeas corpus

petition. Velasco also asks to proceed in forma pauperis. We deny Velasco’s

application for a COA on procedural grounds, deny his motion for leave to proceed

on appeal in forma pauperis as moot, and dismiss his appeal.

      On October 24, 2012, a federal jury convicted Velasco of (1) possessing with

intent to distribute methamphetamine, and (2) conspiring to distribute the same. The

district court then sentenced Velasco to 188 months in jail. Velasco challenged only

his sentence on appeal, and we affirmed. See United States v. Velasco, 543 F. App’x

759 (10th Cir. 2013). Soon thereafter, Velasco filed a § 2255 petition with the
district court, which the court denied. The court held Velasco’s claims lacked merit

and, in any event, were procedurally barred because he failed to raise them on direct

appeal. The court also denied a COA, and Velasco appealed.

      In deciding whether to issue a COA when the district court denies a habeas

petition on procedural grounds, we must determine whether the petitioner has made

a substantial showing “that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). Here, the court based its procedural rejection on Velasco’s failure to

bring the arguments contained in his petition on direct appeal. And indeed, we have

held “[a] defendant who fails to present an issue on direct appeal is barred from

raising the issue in a § 2255 motion, unless he can show cause for his procedural

default and actual prejudice resulting from the alleged errors, or can show that a

fundamental miscarriage of justice will occur if his claim is not addressed.” United

States v. Allen, 16 F.3d 377, 378 (10th Cir. 1994).

      In his original petition and on appeal, Velasco challenges (in various ways) the

validity of his indictment. For example, he alleges “the government attorney appears

to simply have drafted a charging instrument” rather than “make presentation of the

allegations to the grand jury for a vote of at least 12 concurring to indict.” Velasco

does not dispute the district court’s finding that he did not bring indictment-related

arguments on direct appeal, nor could he. See Velasco, 543 F. App’x 759. Instead,

he contends waiver does not apply here because, by attacking the indictment, he has

                                          2
“advance[d] a subject matter jurisdiction challenge.” (emphasis added).

      For Tenth Circuit support Velasco relies solely on United States v. Tony, 637

F.3d 1153 (10th Cir. 2011), where we stated—in the context of a § 2255

petition—that “[s]ubject-matter jurisdiction cannot be forfeited or waived because

it involves a court’s power to hear a case.” Id. at 1158–59 (internal marks omitted).

Problem is, Velasco fails to take into account the remainder of what we said—and

held—in Tony.      “[T]he term ‘jurisdiction,’” our Tony panel noted, “is often

misused.” Id. at 1157. Indeed, we explicitly spelled out its limitations: “[T]he

beginning and the end of the ‘jurisdictional inquiry’” in “every federal criminal

prosecution . . . comes from 18 U.S.C. § 3231.” Id. 1 We then went on to reject the

proposition that allegations of a faulty indictment trigger subject-matter jurisdiction

concerns under § 3231. There, the petitioner contended subject-matter jurisdiction

was implicated when “the indictment failed to state a crime.” Id. at 1159. Au

contraire, we held: “[A]sserting the indictment failed to state an offense . . . is

untimely when raised for the first time in a § 2255 motion.” Id. Even more apropos,

for support we cited United States v. Valadez-Camarena, 402 F.3d 1259 (10th Cir.

2005), a case where we rejected, without considering the merits, a “post-judgment

challenge to the indictment within a § 2255 motion because it was untimely.” Tony,

637 F.3d at 1159 (citing Valadez-Camarena, 402 F.3d at 1261).


      1
         Under 18 U.S.C. § 3231, “The district courts of the United States shall have
original jurisdiction . . . of all offenses against the laws of the United States.”

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      The same applies to the sole Supreme Court decision cited by Velasco, United

States v. Cotton, 535 U.S. 625 (2002). In Cotton, the Court did state that “defects

in subject-matter jurisdiction require correction regardless of whether the error was

raised in district court.” Id. at 630. The Court also explained, however, that the

term “jurisdiction” means only “the courts’ statutory or constitutional power to

adjudicate the case,” id. (emphasis in original), and that “defects in an indictment do

not deprive a court of its power to adjudicate a case.” Id. (emphasis added).

      Simply put, reasonable jurists would not debate the district court’s procedural

ruling here because the only two cases relied on by Velasco directly foreclose his

own position. A collateral attack on an indictment is not a challenge to subject-

matter jurisdiction, see Tony, 637 F.3d at 1157–59; Cotton, 535 U.S. at 630–31, thus

Velasco waived such an attack on his indictment by not bringing it on direct appeal. 2

As such, we DENY Velasco’s motion for a certificate of appealability, DENY his

motion to proceed in forma pauperis as moot, and DISMISS his appeal.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




      2
         Velasco does not attempt to “show cause for his procedural default and
actual prejudice,” nor does he attempt to “show that a fundamental miscarriage of
justice will occur if his claim is not addressed.” Allen, 16 F.3d at 378.

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