Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.john L. Plemons, Petitioner-appellant, v. United States of America, Respondent-appellee, 12 F.3d 1101 (7th Cir. 1993)

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US Court of Appeals for the Seventh Circuit - 12 F.3d 1101 (7th Cir. 1993) Submitted Oct. 19, 1993. *Decided Nov. 22, 1993

Before CUMMINGS, CUDAHY and EASTERBROOK, Circuit Judges.


John Plemons was convicted of tax evasion because he believes that the income tax system does not apply to him, and he acted accordingly. The conviction was affirmed on appeal, and Plemons then filed a motion under 28 U.S.C. § 2255, containing an assortment of frivolous contentions. Example from page 8 of his brief: "How can the Defendant be convicted when he is an American National per 8 U.S.C. § 1502? The Defendant CANNOT be legally convicted by any court in the land due to lack of jurisdiction and venue."

With a single potential exception, none of Plemons' contentions is proper in this collateral attack. Some were raised on direct appeal; the rest could have been. Collateral attack is not simply a deferred appeal, so these contentions have been forfeited. Some, indeed, were forfeited long ago. Plemons contends that the district court lacked "venue jurisdiction"--by which he must mean venue, since the location of the trial does not concern either personal or subject-matter jurisdiction--but should have raised this contention before trial, and per Fed. R. Crim. P. 12(f) is barred from doing so later.

The potential exception is ineffective assistance of counsel, which under this circuit's latest decision sometimes may, and sometimes may not, be raised on collateral attack. Guinan v. United States, No. 92-2832 (7th Cir. Sept. 30, 1993). We need not try to classify Plemons's complaint under Guinan, because it is frivolous by any standard. Plemons believes that his attorney was ineffective because he did not make the standard tax protest arguments. Of course the judge would not have let the lawyer make legally erroneous arguments to the jury, and failing to present these threadbare arguments to the judge could not have affected the outcome. Plemons received competent legal assistance; his problem was that he had no defense.



After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a), Circuit Rule 34(f). Appellant responded with a request to postpone oral argument. On May 11, 1993, the court entered an order denying this request and ordering the case submitted for decision on the briefs and record