                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                        MAY 22 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-6005
 v.
                                                (D.C. No. 01-CIV-1308-T,
                                                      99-CR-13-T)
 WAYNE EUGENE FORTUNE,
                                                    (W.D. Oklahoma)
          Defendant - Appellant.




                             ORDER AND JUDGMENT *


Before TACHA, Chief Judge, EBEL and LUCERO, Circuit Judges.


      Petitioner-Appellant Wayne Eugene Fortune was convicted by a jury of 1)

interfering with interstate commerce by robbery, in violation of 18 U.S.C. § 1951;

2) using or carrying a firearm during the commission of the robbery, in violation

of 18 U.S.C. § 924(c)(1); and 3) possessing a firearm after previous conviction of


      *
        After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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. 36.3.
a felony, in violation of 18 U.S.C. § 922(g)(1). He now appeals from the district

court’s denial of his post-conviction motion filed pursuant to 28 U.S.C. § 2255.

He raises two issues.

      First, Fortune argues that the district court lacked subject matter

jurisdiction over his prosecution because the offenses for which he was convicted

were state law offenses, and the state did not waive its jurisdiction. It is well

established that a state and the federal government may each prosecute a

defendant for the same offense without raising double jeopardy concerns. United

States v. Trammell, 133 F.3d 1343, 1349 (10th Cir. 1998). This court is aware of

no authority requiring a state to waive its jurisdiction before the federal

government may prosecute a federal offense.

      Second, Fortune contends that his trial counsel was constitutionally

ineffective for failing to challenge the district court’s jurisdiction, for failing to

locate and produce a certain eyewitness, and for allowing Fortune to receive a life

sentence. For substantially the same reasons set forth in the district court’s

opinion, we hold that Fortune’s ineffective assistance claim is meritless. To the

extent that the district court did not address the failure of Fortune’s counsel to

raise the precise jurisdictional issue discussed above, the counsel’s failure cannot

be deemed deficient, as the issue lacks merit.




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      Fortune’s application for a certificate of appealability and motion to

proceed in forma pauperis are DENIED. This appeal is DISMISSED. The filing

fee shall be paid within ten days of the date of this order.


                                        ENTERED FOR THE COURT



                                        David M. Ebel
                                        Circuit Judge




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