United States v. Martin J. Cote

19 F.3d 1441 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Martin J. COTE, Defendant-Appellant. No. 93-35623. United States Court of Appeals, Ninth Circuit. Submitted March 8, 1994. * Decided March 16, 1994. Before: FLETCHER, BRUNETTI, and TROTT, Circuit Judges. 1 MEMORANDUM ** 2 Martin J. Cote, a former federal prisoner, appeals the district court's denial of his 28 U.S.C. Sec. 2255 motion. After trial by jury, Cote was convicted in 1982 of three counts of income tax evasion, 26 U.S.C. Sec. 7201 , and three counts of failure to file income tax returns, 26 U.S.C. Sec. 7203 . He contends that the district court erred by denying his claim that Cheek v. United States, 498 U.S. 192 (1991) requires reversal of his conviction. We dismiss for lack of jurisdiction. 3 It is a jurisdictional prerequisite that a section 2255 movant be in custody at the time his 2255 motion is filed. 28 U.S.C. Sec. 2255 . There is no exception to this…