United States v. Darren Thomas

21 F.3d 1123, 1994 U.S. App. LEXIS 17820, 1994 WL 117456

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 8, 1994
• Docket: 93-5157
• Status: Published

Opinion

21 F.3d 1123

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Darren THOMAS, Defendant-Appellant.

No. 93-5157.

United States Court of Appeals, Tenth Circuit.

April 8, 1994.

ORDER AND JUDGMENT1

Before SEYMOUR, Chief Judge, McKAY, and BALDOCK, 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 cause is therefore ordered submitted without oral argument.

Darren Thomas, a pro se federal prisoner, brought this action to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. Mr. Thomas raises numerous challenges to his sentence, alleging that the district court violated Fed.R.Crim.P. 32(c)(3)(d), and that the court improperly applied various enhancement provisions. Mr. Thomas also alleges that he was denied due process and equal protection because the court reporter did not transcribe his testimony, his attorney's closing argument, or the jury instructions.

Mr. Thomas' federal criminal conviction was affirmed on direct appeal. See United States v. Thomas, 945 F.2d 328 (10th Cir.), cert. denied, 112 S.Ct. 404 (1991). Mr. Thomas did not assert in that appeal any of the errors he now presents in this section 2255 proceeding. He may not therefore obtain relief unless he demonstrates good cause for his failure to raise the issues in that direct appeal or shows "that a fundamental miscarriage of justice will occur if his claim is not addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993); see also United States v. Khan, 835 F.2d 749, 753-54 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988). At no point in his section 2255 proceeding has Mr. Thomas made any showing of cause for his failure to assert on direct appeal the issues he now raises. Moreover, nothing in the record before us excuses Mr. Thomas' failure. Accordingly, we conclude that he may not assert these new issues in this proceeding.

AFFIRMED.

1 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 the court's General Order filed November 29, 1993. 151 F.R.D. 470