UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BARTON LEE MURPHY,

Defendant-Appellant.	No. 97-2191

(D.C. No. 96-225-JP/ WWD )

(D. N.M.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL and KELLY, Circuit Judges.

After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Acting pro se, Mr. Murphy appeals the district court's dismissal of his motion challenging the civil forfeiture of his property. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.1

Before going to prison, Mr. Murphy sold drugs. United States v. Murphy, No. 91-2251 (10th Cir. Aug. 13, 1992). After repeatedly selling to the wrong person (a government informant), he was convicted and sentenced to ten years in prison. Id. Mr. Murphy did not just lose his freedom as a result of his illegal activities, however; he also lost most, if not all, of his personal property.

Immediately after Mr. Murphy's arrest, the federal government filed a civil forfeiture complaint seeking to seize his home and all of its contents, including a number of automobiles. Mr. Murphy filed a claim to the property in district court and answered the government's complaint. Following his conviction, however, the government successfully moved for summary judgment in the civil proceeding. Mr. Murphy unsuccessfully moved for reconsideration of the summary judgment and failed to appeal the court's decision. 2

Almost four years later, Mr. Murphy filed a motion pursuant to 28 U.S.C. § 2255 seeking, among other things, to invalidate the forfeiture proceedings. Adopting the magistrate judge's recommendations, the district court dismissed the § 2255 motion. Mr. Murphy raises four issues in his appeal of this decision: (1) his criminal judgment collaterally estopped the government from pursuing civil forfeiture proceedings; (2) certain items were improperly included in the civil proceedings; (3) items he owned before the effective date of the forfeiture statute were improperly forfeited; and (4) the court should have construed his Federal Rule of Criminal Procedure 41(e) motion as a civil complaint. We review de novo a district court's legal rulings in a § 2255 proceeding. See United States v. Cook, 49 F.3d 663, 665 (10th Cir. 1995).

We need not reach the substance of Mr. Murphy's appeal because, as the magistrate judge correctly noted, the district court did not have jurisdiction to hear a challenge of the forfeiture proceedings.

Section 2255 provides a means whereby a federal prisoner may

claim[] the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

28 U.S.C. § 2255. This section simply does not apply to a challenge of a civil forfeiture, as Mr. Murphy suggests.

Furthermore, Mr. Murphy could not obtain jurisdiction to proceed before the district court pursuant to Fed. R. Crim. P. 41(e), as he claims, because the forfeiture took place in a prior, judicial civil proceeding. Fed. R. Crim. P. 41 does not apply to civil forfeitures of property. See Floyd v. United States, 860 F.2d 999, 1006-07 (10th Cir. 1988) (distinguishing that case from the situation where, as here, there was a civil forfeiture in a district court); see also Fed. R. Crim. P. 54(b)(5) (Fed. R. Crim. P. 41(e) is "not applicable to ... civil forfeiture of property for violation of a statute of the United States.")

The proper avenue to attack a civil forfeiture is by a direct appeal of the district court's decision in the forfeiture proceeding. Mr. Murphy chose not to file such an appeal in his case. Section 2255 and Fed. R. Crim. P. 41 do not operate to give him a second bite at that apple.

The decision of the district court is AFFIRMED and the appeal is DISMISSED.

Entered for the Court

WADE BRORBY

United States Circuit Judge