                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        April 2, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,               Nos. 06-6081 & 06-6112


          v.                                            W .D. Oklahoma
 R ON N STER LIN G ,                               (D.C. No. CR-95-119-M )

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, 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.

      Ronn Sterling, a federal prisoner appearing pro se, appeals from the district

court’s denial of his “M otion for O rder to Remit Fine/Restitution” pursuant to



      *
        This order and judgment is not binding precedent except under the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.
Rule 35 of the Federal Rules of Criminal Procedure. 1 The district court denied

the motion because it was not filed within seven days after sentencing as required

by Rule 35(a). Sterling filed a notice of appeal and an application to proceed in

form a pauperis (ifp) on appeal. The district court denied Sterling’s ifp motion

pursuant to 28 U.S.C. § 1915(a)(3), concluding his appeal was not taken in good

faith. Sterling then appealed the district court’s denial of his ifp application and

renewed his ifp application with this Court. Exercising jurisdiction under 28

U.S.C. § 1291, we AFFIRM .

                                     I. Background

      On October 18, 1995, a jury found Sterling guilty of bank robbery in

violation of 18 U.S.C. § 2113(a) & (d), carrying a firearm during and in relation

to a crime of violence in violation of 18 U.S.C. § 924(c)(1), and being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On December 19,

1995, the district court sentenced Sterling to a total of 160 months imprisonment.

Additionally, the district court ordered Sterling to pay First Enterprise Bank

$14,000.00 in restitution. The district court waived the payment of a fine because

of Sterling’s inability to pay both a fine and restitution. 2


      1
        Because Sterling appears pro se, we construe his pleadings liberally.
Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
      2
       In the Judgement and Commitment Order, the district court checked a box
which states: “Fine is waived or is below the guideline range, because of the
defendant’s inability to pay both a fine and restitution. Community Service is not
ordered in lieu of a fine as the court finds that the defendant is not a suitable

                                           -2-
      Sterling appealed his conviction, but not his sentence. W e upheld

Sterling’s conviction and the U.S. Supreme Court denied certiorari on October 6,

1997. See United States v. Sterling, 103 F.3d 145 (10th Cir. 1996) (unpublished),

cert. denied, 522 U.S. 882 (1997). In M arch 1999, the district court denied

Sterling’s motion to file a 28 U.S.C. § 2255 habeas petition outside the one-year

limitations period. Subsequently, we denied his application for a certificate of

appealability to appeal this denial. See United States v. Sterling, 198 F.3d 260

(10th Cir. 1999) (unpublished), cert. denied, 529 U.S. 1078 (2000).

      In July 2004, Sterling began sending a series of letters to the Clerk of the

District Court seeking clarification of information on his criminal docket sheet.

The district court construed these letters as motions for clarification and denied

them because the statements in question were self-explanatory. Sterling followed

up with a letter on December 13, 2004, asserting the Bureau of Prisons (BOP) was

demanding he pay the restitution. In his opinion, both the fine and restitution

were waived at sentencing. Sterling requested the district court write a letter to

the BOP supporting his view. On December 28, 2004, the district court issued an

order informing him it would only consider papers properly filed or delivered in

accordance with the applicable federal and local rules. In a footnote, the court

indicated Sterling is responsible for the restitution and attached a copy of the

judgment.


candidate.” (R. Vol. I, Doc. 93 at 5.)

                                          -3-
      In October 2005, Sterling filed a “M otion for Order to Remit Fine/

Restitution” pursuant to Rule 35 of the Federal Rules of Criminal Procedure.

Sterling asserted the fine/restitution portion of his sentence was clearly erroneous

and an abuse of discretion based on the court’s failure to consider the

requirements of 18 U.S.C. §§ 3663 and 3664. 3 In Sterling’s opinion, the bank’s

insurance proceeds and the money collected from his co-defendants more than

compensated First Enterprise Bank for its losses. Additionally, Sterling argued

the restitution order should be vacated because the district court determined he

could not afford to pay a fine and he had been incarcerated for ten years. The

government responded that Rule 35(a), as interpreted by United States v. Green,

deprived the district court of jurisdiction to grant Sterling relief because more

than seven days had elapsed since sentencing. 405 F.3d 1180 (10th Cir. 2005).

The district court agreed. Sterling appealed and filed a motion to proceed ifp on

appeal which the district court denied pursuant to 28 U .S.C. § 1915(a)(3) because

his appeal was not taken in good faith. Thus, there are two appeals presently

before us. The first (Appeal No. 06-6081) challenges the district court’s denial of

Sterling’s motion to remit and the second (Appeal No. 06-6112) contests the



      3
         The pertinent language of 18 U.S.C. § 3663(a)(1)(B)(i) states: “The
court, in determining whether to order restitution under this section, shall
consider-- (I) the amount of the loss sustained by each victim as a result of the
offense; and (II) the financial resources of the defendant, the financial needs and
earning ability of the defendant and the defendant’s dependents, and such other
factors as the court deems appropriate.”

                                         -4-
district court’s denial of leave to proceed ifp in Appeal No. 06-6081. W e

consolidated Sterling’s appeals for procedural purposes.

                                     II. Discussion

         A. Appeal No. 06-6081: Denial of M otion to Remit

         Rule 35(a) of the Federal Rules of Criminal Procedure provides: “W ithin 7

days after sentencing, the court may correct a sentence that resulted from

arithmetical, technical, or other clear error.” Sterling did not ask the district court

to correct his sentence until approximately ten years after sentencing. Clearly

Sterling’s motion is untimely. Here, the district court relied on United States v.

Green to determine it lacked jurisdiction under Rule 35(a) to remit its order. 405

F.3d 1180. We review de novo the district court’s jurisdictional determination.

United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996).

         In Green, we determined a district court lacks jurisdiction under Rule 35(a)

to resentence a defendant more than seven days after the court orally imposes a

sentence. 405 F.3d at 1185-87. Eberhart v. United States calls into doubt the

jurisdictional nature of Rule 35(a)’s time limits. 546 U.S. 12 (2005). Even

assuming Rule 35(a) is not jurisdictional but rather a non-jurisdictional claim-

processing rule subject to forfeiture, the government properly raised it.

Therefore, the district court properly dismissed Sterling’s R ule 35 motion to

remit.




                                          -5-
      To the extent Sterling’s Rule 35(a) motion should have been

recharacterized as a 28 U.S.C. § 2255 petition, it is outside the one-year statute of

limitations. See 28 U.S.C. § 2255. The district court appropriately denied his

request to file a § 2255 petition. M oreover, Sterling could not challenge the

restitution portion of his sentence in a § 2255 petition because he did not raise it

on direct appeal. “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). Nothing

presented in the record persuades us that actual prejudice or a fundamental

miscarriage of justice would occur if Sterling’s claim is not addressed. Sterling

had the opportunity to address this issue on direct appeal and he cannot use Rule

35 or § 2255 as an end run around the direct appeal process.

      B. Appeal No. 06-6112: Denial of Leave to Proceed Ifp

      After the district court denied his “M otion for Order to Remit

Fine/Restitution” Sterling filed a notice of appeal and an application to proceed

ifp on appeal. The district court denied his ifp application pursuant to 28 U.S.C.

§ 1915(a)(3), concluding the appeal was not taken in good faith because Sterling

presented frivolous issues that involve inarguable legal conclusions. See Neitzke

v. W illiam s, 490 U .S. 319, 325 (1989). Sterling appealed the denial of his ifp

                                          -6-
application and renewed his motion for leave to proceed ifp with this Court. See

F ED . R. A PP . P. 24(a)(5).

       In his opening brief, Sterling raises no claims of error with respect to the

district court’s denial of his request to proceed ifp. Nevertheless, appealing the

denial of his ifp application is not the proper procedure in this situation. Instead,

Rule 24(a)(5) of the Federal Rules of Appellate Procedure allows Sterling to

renew his ifp application with this Court, as he has done. This conclusion is

bolstered by the Advisory Committee’s Notes to the 1967 adoption of Rule 24:

       [Rule 24(a)(5)] establishes a subsequent motion in the court of appeals,
       rather than an appeal from the order of denial or from the certification
       of lack of good faith, as the proper procedure for calling in question the
       correctness of the action of the district court. The simple and
       expeditious motion procedure seems clearly preferable to an appeal.
       [Rule 24(a)(5)] applies only to applications for leave to appeal in forma
       pauperis. The order of a district court refusing leave to initiate an
       action in the district court in forma pauperis is review able on appeal.
       See Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954,
       94 L.Ed. 1326 (1950).

F ED . R. A PP . P. 24 advisory committee’s note (emphasis added). Therefore, we

will simply address Sterling’s renewed application with this Court. W e have

review ed his contentions and adopt the district court's finding that this appeal is

not taken in good faith. Coppedge v. United States, 369 U.S. 438, 446 (1962).

W e deny Sterling’s motion to proceed ifp on appeal and order him to immediately

remit the full amount of the filing fee. W e remind him of his obligation to pay

the filing fee even on an appeal that has been dismissed. See Kinnell v. Graves,



                                          -7-
265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve

appellant of the obligation to pay the appellate filing fee in full).

      For the forgoing reasons we AFFIRM Appeal No. 06-6081, DISM ISS

Appeal No. 06-6112 and DENY Sterling’s renewed application to proceed ifp on

appeal.

                                                 ENTERED FOR THE COURT


                                                 Terrence L. O’Brien
                                                 Circuit Judge




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