21 F. 3d 1123 - United States v. Thomas

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 is therefore ordered submitted without oral argument.

Darren Thomas, a pro se federal prisoner, brought this action to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. Mr. Thomas raises numerous challenges to his sentence, alleging that the district court violated Fed.R.Crim.P. 32(c)(3)(d), and that the court improperly applied various enhancement provisions. Mr. Thomas also alleges that he was denied due process and equal protection because the court reporter did not transcribe his testimony, his attorney's closing argument, or the jury instructions.

Mr. Thomas' federal criminal conviction was affirmed on direct appeal. See United States v. Thomas, 945 F.2d 328 (10th Cir.), cert. denied, 112 S.Ct. 404 (1991). Mr. Thomas did not assert in that appeal any of the errors he now presents in this section 2255 proceeding. He may not therefore obtain relief unless he demonstrates good cause for his failure to raise the issues in that direct appeal or shows "that a fundamental miscarriage of justice will occur if his claim is not addressed." United States v. Cook, 997 F.2d 1312, 1320 (10th Cir.1993); see also United States v. Khan, 835 F.2d 749, 753-54 (10th Cir.1987), cert. denied, 487 U.S. 1222 (1988). At no point in his section 2255 proceeding has Mr. Thomas made any showing of cause for his failure to assert on direct appeal the issues he now raises. Moreover, nothing in the record before us excuses Mr. Thomas' failure. Accordingly, we conclude that he may not assert these new issues in this proceeding.

AFFIRMED.