United States v. Sanders

115 F. App'x 333

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 8, 2004
• Docket: No. 04-15382
• Status: Published

Opinion

MEMORANDUM

**

Thomas Sanders appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence following his conviction for perjury, in violation of 18 U.S.C. § 1623. We have jurisdiction pursuant to 28 U.S.C. § 2253, and reviewing de novo, we affirm.

Sanders contends that the prosecutor’s misconduct in closing arguments deprived him of due process. Because Sanders failed to raise this issue below or demonstrate that cause and prejudice or actual innocence excused his default, his motion is procedurally barred. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (holding claim alleging constitutional error barred when raised for the first time on a § 2255 motion and appellant failed to show cause and prejudice or factual innocence).

Sanders’ request for an expanded certificate of appealability is denied.

DISMISSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.