United States v. Russell Sullivan

67 F.3d 312, 1995 U.S. App. LEXIS 32975, 1995 WL 561127

• Court: Court of Appeals for the Tenth Circuit
• Decided: September 21, 1995
• Docket: 95-7048
• Status: Published

Opinion

67 F.3d 312

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.
Russell SULLIVAN, Defendant--Appellant.

No. 95-7048.

United States Court of Appeals, Tenth Circuit.

Sept. 21, 1995.

ORDER AND JUDGMENT1

Before TACHA, LOGAN and KELLY, Circuit Judges.2

Plaintiff-appellant Russell Sullivan, appearing pro se and in forma pauperis, appeals from the district court's denial of his 28 U.S.C. 2255 motion. In 1991, plaintiff pled guilty to three counts of an eight-count indictment and was sentenced to three consecutive terms of imprisonment. Plaintiff subsequently appealed, and the Tenth Circuit affirmed. United States v. Sullivan, 967 F.2d 370 (10th Cir.), cert. denied, 113 S.Ct. 285 (1992).

Plaintiff's section 2255 motion sets forth no specific allegations of error, instead asserting broad conclusions of unfairness that are unsupported by any factual basis and requesting that the court show compassion in granting his motion. Even a liberal construction of this pro se plaintiff's petition does not reveal the existence of a valid claim. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991).

Furthermore, in the absence of demonstrating cause and prejudice or a fundamental miscarriage of justice, a petitioner may not raise any issue in a 28 U.S.C. 2255 motion that the petitioner was required to raise first on direct appeal. United States v. Frady, 456 U.S. 152, 164-65 (1982); United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993); United States v. Khan, 835 F.2d 749, 753 (10th Cir.); cert. denied, 487 U.S. 1222 (1988).

AFFIRMED. The mandate shall issue forthwith.

1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 151 F.R.D. 470 (10th Cir.1993)

2 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 therefore is ordered submitted without oral argument