OpenJurist

36 F3d 1106 United States v. E Horton

36 F.3d 1106

UNITED STATES of America, Plaintiff-Appellee,
v.
William E. HORTON, Defendant-Appellant.

No. 94-6115.

United States Court of Appeals, Tenth Circuit.

Sept. 21, 1994.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral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

ORDER AND JUDGMENT1

Before MOORE, ANDERSON and KELLY, Circuit Judges.2

1

Mr. Horton appeals from the denial of his second 28 U.S.C. 2255 motion to vacate, set aside, or correct sentence. The district court dismissed this second motion as successive. Our jurisdiction arises under 28 U.S.C. 2253 and we affirm.

2

We have reviewed the claims asserted in Mr. Horton's first and second petitions, and conclude that they are sufficiently similar to bar review of the second petition. See Sanders v. United States, 373 U.S. 1, 15 (1963). We agree with the district court that Mr. Horton has not demonstrated cause and prejudice, or fundamental miscarriage of justice. McCleskey v. Zant, 111 S.Ct. 1454, 1470-71 (1991).

3

Moreover, Mr. Horton failed to appeal from the denial of his first 2255 motion. Although we recognize that res judicata does not apply in the present context, McCleskey, 111 S.Ct. at 1462-63, a second 2255 petition may not be used in an effort to revisit the decision not to appeal the denial of the first motion. United States v. Kress, 944 F.2d 155, 162 (3rd Cir.1991); United States v. Leiby, 820 F.2d 70, 74 (3rd Cir.1987). We affirm on the grounds that the pleadings at issue are successive and constitute an abuse of the 2255 remedy. See Rule 9(b), Rules Governing Proceedings in the United States District Courts Under 28 U.S.C. 2255; McCleskey, 111 S.Ct. at 1470-71.

4

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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