United States v. Aston

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 16, 2000
• Docket: 97-4171
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 16 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4171 (D.C. No. 97-CV-127-B) ERYCK C. ASTON, (D. Utah)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BALDOCK , BRISCOE , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioner Eryck C. Aston appeals from the district court’s denial of his

motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. § 2255. Petitioner was convicted after pleading guilty to a single charge of illegal

possession of a firearm, and is now on probation following incarceration. We

have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. Under

the provisions of the Antiterrorism and Effective Death Penalty Act, petitioner

must obtain a certificate of appealability before his appeal can proceed. See 28

U.S.C. § 2253(c)(1)(B). Petitioner must demonstrate “a substantial showing of

the denial of a constitutional right” before a certificate of appealability can issue.

See id. § 2253(c)(2).

In his § 2255 motion, petitioner claimed that 1) his conviction violated

double jeopardy, 2) he was denied effective assistance of counsel both at trial and

on direct appeal, 3) his conviction was based on evidence from an

unconstitutional search and seizure and a coerced guilty plea, 4) he was illegally

denied a prison transfer, and 5) his sentence was based on improper hearsay

evidence. After a limited remand to develop the record, the district court denied

petitioner’s § 2255 motion. It concluded that he had not demonstrated prejudice

to support his claims of ineffective assistance of counsel, see Strickland v.

Washington , 466 U.S. 668, 687 (1984), and dismissed the balance of his claims on

the bases of procedural bar, res judicata, and mootness.

On appeal from the district court’s ruling, petitioner has filed no less than

twelve pleadings. These pleadings reurge the issues raised before the district

-2- court, discuss many issues and matters not before the court in this case, and seek

additional relief of various kinds. To the extent that petitioner argues issues not

raised before the district court, we decline to consider those points. See

Rademacher v. Colorado Ass’n of Soil Conservation Dists. Medical Benefits Plan ,

11 F.3d 1567, 1571 (10th Cir. 1993). To the extent that petitioner’s arguments

can be construed as motions for additional or alternative relief, any outstanding

motions are DENIED. As to the issues raised to and addressed by the district

court, after review of petitioner’s many pleadings, we conclude that he has not

demonstrated the denial of a constitutional right. Accordingly, we DENY

petitioner a certificate of appealability and DISMISS this appeal. The mandate

shall issue forthwith.

Entered for the Court

Bobby R. Baldock Circuit Judge

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