United States v. Lewis

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 8, 1997
• Docket: 96-3136
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 8 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-3136 (D.C. No. 96-3012-DES) CHRISTOPHER COLUMBUS (D. Kan.) LEWIS,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **

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 case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** Honorable Michael Burrage, Chief Judge, United States District Court for the Eastern District of Oklahoma, sitting by designation. Defendant Christopher Columbus Lewis, proceeding pro se, appeals the

district court’s order dismissing his petition filed under 28 U.S.C. § 2255.

Petitioner alleges that his 1992 convictions for possession of and conspiracy to

distribute cocaine and crack cocaine are constitutionally infirm because (1) there

was no probable cause for his arrest, (2) the evidence was insufficient to establish

that the substance was crack cocaine, (3) the rule of lenity requires a lower

sentence due to an ambiguity in the sentencing guidelines, (4) the sentencing

guidelines do not authorize the length of supervised release imposed, and (5) he

was the target of a selective prosecution. On April 1, 1996, the district court

vacated two related convictions pursuant to Bailey v. United States, 116 S. Ct.

501 (1995).

The provisions of the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), requiring a § 2255

motion to be filed within one year after conviction and mandating that the movant

obtain a certificate of appealability, see 28 U.S.C. §§ 2253(c), 2255, do not apply

in this case because the notice of appeal was filed on April 8, 1996, before the

Act’s effective date. See United States v. Lopez, 100 F.3d 113, 116 (10th Cir.

1996).

Defendant did not raise his probable cause and sufficiency of the evidence

arguments in his direct criminal appeal. See United States v. Lewis, 24 F.3d 79

-2- (10th Cir.), cert. denied, 513 U.S. 905 (1994). We do not address those

arguments because he has failed to demonstrate either cause and prejudice for his

procedural default or a miscarriage of justice resulting from our failure to

consider them. See United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995). He

failed to present his sentencing claims to the district court, and we therefore

decline to address them. See United States v. Fisher, 38 F.3d 1144, 1146 n.1

(10th Cir. 1994). Similarly, we do not consider the merits of his selective

prosecution claim because he failed to raise it before trial, see Fed. R. Crim. P.

12(b)(1), and he has not demonstrated cause for failing to do so, see United States

v. Bryant, 5 F.3d 474, 476 (10th Cir. 1993). Even if we were to reach the merits

of his claims, we would conclude that defendant is not entitled to relief.

AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

James K. Logan Circuit Judge

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