United States v. Jerry L. Grist

Tenth Circuit

United States v. Jerry L. Grist

112 F.3d 451, 1997 U.S. App. LEXIS 8553, 1997 WL 200032

CourtCourt of Appeals for the Tenth Circuit

DecidedApril 24, 1997

Docket96-6331

StatusPublished

This text of 112 F.3d 451 (United States v. Jerry L. Grist) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Jerry L. Grist, 112 F.3d 451, 1997 U.S. App. LEXIS 8553, 1997 WL 200032 (10th Cir. 1997).

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Opinion

ORDER

JOHN C. PORFILIO, Circuit Judge.

Jerry Lee Grist attempts to appeal from an order denying his petition for vacation of sentence under 28 U.S.C. § 2255 on the grounds of double jeopardy. He contends after his consent to a judicial forfeiture of his property he could not be convicted on the substantive count upon which the forfeiture was predicated. Although he admits he did not contest the forfeiture, he maintains his plea of guilty was barred by the double jeopardy clause of the Fifth Amendment. We have previously held a person is not placed in jeopardy by a judicial forfeiture unless he contests it in the district court. United States v. Hardwell, 80 F.3d 1471, 1485, (10th Cir.1996); United States v. German, 76 F.3d 315, 318 (10th Cir.1996).

Mr. Grist also argues he was denied effective assistance of counsel because his attorney did not raise the double jeopardy issue prior to the entry of his guilty plea, nor did he present the issue on direct appeal. Of course, because the issue was not available, failure to raise it cannot constitute denial of effective assistance.

Thus, Mr. Grist, having faded to preserve the double jeopardy issue, has failed to raise justiciable questions in this court. Id. The certificate of appealability is DENIED and the appeal is DISMISSED. 28 U.S.C. § 2253(c)(2); Lennox v. Evans, 87 F.3d 431 (10th Cir.1996). The previous orders entered for the payment of a filing fee are VACATED. United States v. Simmonds, 111 F.3d 737 (10th Cir.Kan.1997).

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ORDER

JOHN C. PORFILIO, Circuit Judge.

Jerry Lee Grist attempts to appeal from an order denying his petition for vacation of sentence under 28 U.S.C. § 2255 on the grounds of double jeopardy. He contends after his consent to a judicial forfeiture of his property he could not be convicted on the substantive count upon which the forfeiture was predicated. Although he admits he did not contest the forfeiture, he maintains his plea of guilty was barred by the double jeopardy clause of the Fifth Amendment. We have previously held a person is not placed in jeopardy by a judicial forfeiture unless he contests it in the district court. United States v. Hardwell, 80 F.3d 1471, 1485, (10th Cir.1996); United States v. German, 76 F.3d 315, 318 (10th Cir.1996).

Mr. Grist also argues he was denied effective assistance of counsel because his attorney did not raise the double jeopardy issue prior to the entry of his guilty plea, nor did he present the issue on direct appeal. Of course, because the issue was not available, failure to raise it cannot constitute denial of effective assistance.

Thus, Mr. Grist, having faded to preserve the double jeopardy issue, has failed to raise justiciable questions in this court. Id. The certificate of appealability is DENIED and the appeal is DISMISSED. 28 U.S.C. § 2253(c)(2); Lennox v. Evans, 87 F.3d 431 (10th Cir.1996). The previous orders entered for the payment of a filing fee are VACATED. United States v. Simmonds, 111 F.3d 737 (10th Cir.Kan.1997).

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Bluebook (online)

112 F.3d 451, 1997 U.S. App. LEXIS 8553, 1997 WL 200032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jerry-l-grist-ca10-1997.

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