United States v. Deas

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2004
• Docket: 95-10205
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-10205 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

THOMAS RAY DEAS,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:94-CV-192-C/5:90-CR-13-2 - - - - - - - - - - June 27, 1995

Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Thomas Deas argues that the district court erred in raising sua

sponte Rule 9(b) and in dismissing his 28 U.S.C. § 2255 motion

for abuse of the procedure. Abuse of the procedure may be raised

sua sponte by the district court. United States v. Flores, 981

F.2d 231, 236 n.9 (5th Cir. 1993).

A district court's dismissal under Rule 9(b) is reviewed for

abuse of discretion. Id. at 234. A court may not reach the

merits of motions raising new claims unless the movant

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has determined that this opinion should not be published. No. 95-10205 -2-

establishes cause for not raising the point in a prior motion and

prejudice if the court fails to consider the new point.

McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). To demonstrate

"cause," Deas must show that "some objective factor external to

the defense impeded counsel's efforts" to raise the claim in the

initial motion. Id. at 493, quoting Murray v. Carrier, 477 U.S.

487, 488 (1986). A movant's pro se status does not necessarily

constitute "cause," and if the factual and legal basis for an

argument was reasonably available to the movant when he filed an

earlier motion, his delay in raising the issue will not be

excused. Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992).

Deas has not demonstrated cause, as defined in McCleskey, and

therefore we need not consider whether there is prejudice. See

id.

Even if a movant cannot meet the cause-and-prejudice

standard, a federal court may hear the merits of a successive

motion if the movant establishes that a constitutional violation

probably caused him or her to be convicted of a crime of which he

or she is innocent. Flores, 981 F.2d at 236. Deas has failed to

allege a colorable claim of factual innocence. The district

court acted properly in dismissing his § 2255 motion as abusive.

The district court's decision is AFFIRMED.