                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS                June 23, 2014
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
                                                       No. 14-7000
          v.                                 (D.C. No. 6:91-CR-00051-FHS-1)
                                                       (E.D. Okla.)
WALTER ELIYAH THODY,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before GORSUCH, MURPHY, and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in 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.

      In 1991, a federal jury found appellant, Walter Eliyah Thody, guilty of two

counts of bank robbery, one count of possession of a firearm by a convicted felon,



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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. 32.1.
two counts of using or carrying a firearm during commission of a violent crime,

and one count of conspiracy. Thody’s convictions were affirmed by this court.

United States v. Thody, 978 F.2d 625 (10th Cir. 1992). Thody did not file a

motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.

Instead, on May 19, 2011, he filed a petition for writ of coram nobis, seeking

reversal of one of his convictions for using or carrying a firearm during a violent

crime. The district court denied relief and this court affirmed. United States v.

Thody, 460 F. App’x 776, 779-80 (10th Cir. 2012). We rejected Thody’s

argument the district court erred by not construing his coram nobis petition as a §

2255 motion, ruling he was “barred from filing a § 2255 motion” because the one-

year limitations period set out in 28 U.S.C. § 2255(f) had expired. Id. at 780-81.

      On August 2, 2013, Thody filed a “Motion to Dismiss Conviction and

Vacate Sentence on Count 6.” After first concluding it had no power under 18

U.S.C. § 3582 to modify Thody’s sentence, the district court next concluded the

motion could not be construed as one filed pursuant to 28 U.S.C. § 2255 because

such a motion would be time barred. See United States v. Valadez-Camarena,

402 F.3d 1259, 1261 (10th Cir. 2005) (holding district court did not err by

refusing to recharacterize the defendant’s motion as one pursuant to 28 U.S.C. §

2255 because “such a motion would, at least facially, be barred as untimely”

(quotation omitted)). Thody did not seek to appeal the district court’s dismissal

of his motion. However, on October 28, 2013, he initiated the instant matter by

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filing a document styled, “Motion to Vacate Convictions and Sentences for

Counts 5 and 6 for Court’s Lack of Original Jurisdiction to Unconstitutionally

Twice Jeopardize Defendant for Same Conduct.” In an attempt to circumvent the

one-year statute of limitations imposed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Thody urged the district court to construe his motion as

a challenge to the jurisdiction of the trial court, not a motion “for modification of

sentence, or correction or [sic] erroneous conviction.” The district court

concluded there was no jurisdictional basis for Thody’s motion other than § 2255

and dismissed it , again concluding it would be time barred if construed as a §

2255 motion. See id.

      This court reviews jurisdictional issues de novo. Full Life Hospice, LLC v.

Sebelius, 709 F.3d 1012, 1016 (10th Cir. 2013). It is well-settled that “[t]he

exclusive remedy for testing the validity of a [federal] judgment and sentence,

unless it is inadequate or ineffective, is that provided for in 28 U.S.C. § 2255.”

Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999) (quotation omitted).

Because of the jurisdictional limitation imposed by the AEDPA, a federal prisoner

must use § 2255 to collaterally attack his conviction or sentence unless he can

show that § 2255 is either inadequate or ineffective. Hill v. Dailey, 557 F.3d 437,

439-40 (10th Cir. 2009); see also Sines v. Wilner, 609 F.3d 1070, 1073-74 (10th

Cir. 2010) (discussing the circumstances under which § 2255 could be inadequate

or ineffective). Because Thody has failed to show that § 2255 is inadequate or

                                          -3-
ineffective, the district court did not err in concluding it lacked jurisdiction to

consider his motion.

      In its order, the district court also addressed the merits of Thody’s double

jeopardy claims. In his appellate brief, Thody argues extensively that the district

court’s analysis was erroneous. Because the district court correctly concluded

there was no jurisdictional basis for Thody’s motion, the portion of the court’s

order dated December 18, 2013, addressing Thody’s claims on the merits is

vacated and Thody’s appellate argument is rendered moot. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998) (“The requirement that

jurisdiction be established as a threshold matter spring[s] from the nature and

limits of the judicial power of the United States and is inflexible and without

exception.”). The district court’s order is otherwise affirmed. Thody’s motion

to proceed in forma pauperis on appeal is granted. All other outstanding

motions are denied. 2

                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge



      2
        The Government requests that this court impose filing restrictions on
Thody to curb his prolific and inappropriate motions. Because the district court
imposed restrictions requiring Thody to petition that court before filing motions
on issues previously ruled upon, the relief the Government requests from this
court is unnecessary and is, therefore, denied.

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