United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 13, 2004
Charles R. Fulbruge III
No. 03-20636 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
J. BRENT LIEDTKE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-3973
USDC No. H-97-CR-52-3
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Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
J. Brent Liedtke, federal prisoner # 83237-079, was
convicted by a jury of one count of conspiring to manufacture in
excess of one kilogram of a mixture and substance containing a
detectable amount of methamphetamine (Count One) and of one count
of possession of phenylacetic acid with the intent to manufacture
methamphetamine (Count Four). He was sentenced to concurrent
terms of 233 months’ imprisonment and five years’ supervised
release on each count. Liedtke’s direct appeal was dismissed
when Liedtke failed to file a timely appellate brief.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 03-20636
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Liedtke filed a 28 U.S.C. § 2255 motion raising 12 issues.
He was denied leave to amend his motion. The district court
denied relief. This court granted Liedtke’s motion for a
certificate of appealability (COA) on the following issues:
(1) Whether, assuming the truth of Liedtke’s allegations
regarding the actions of prison officials, Liedtke could
establish a claim for denial of access to the courts; (2) whether
Liedtke had established cause and prejudice for failing to
challenge on direct appeal his five-year term of supervised
release on Count Four; and (3) whether the district court erred
in denying leave to amend. A COA was denied as to all other
issues.
Denial of access to the courts
Liedtke’s claim of denial of access to the courts revolves
around allegations regarding the handling of his pro se appellate
brief by prison officials. He avers that he had substantially
completed the brief by October 21, 2000, but that he was denied
access to the document until November 2, 2000, due to closure of
the prison library and a prison lockdown. Upon regaining access,
Liedtke avers, he placed the brief in the prison mail system for
delivery to his wife for completion and filing, and requested an
extension of time from this court. Liedtke alleges that prison
officials delayed mailing the brief for several days.
To prevail on a claim that his right of access to the courts
has been violated, a prisoner must demonstrate prejudice by
No. 03-20636
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showing that his ability to pursue a “nonfrivolous,” “arguable”
legal claim was hindered by the defendants’ actions. See
Christopher v. Harbury, 536 U.S. 403, 415 (2002). The right of
access to the court is not unlimited, but “encompasses only a
reasonably adequate opportunity to file nonfrivolous legal claims
challenging . . . convictions or conditions of confinement.”
Jones v. Greininger, 188 F.3d 322, 325 (5th Cir. 1999).
A review of this court’s records shows that Liedtke had from
July 5, 2000, to November 6, 2000, to timely file an appellate
brief. See FED. R. APP. P. 26(a)(1). Liedtke was granted
several extensions of time, and, despite being informed that no
more extensions would be granted, he failed to timely file his
appellate brief and instead requested yet another extension. The
facts alleged by Liedtke do not rise to a constitutional
infringement on the right of access to the courts. See
Christopher, 536 U.S. at 415; Jones, 188 F.3d at 325.
Cause and prejudice
Based on the same facts supporting his claim of denial of
access to the courts, Liedtke argues that he has established
cause for failing to file his appellate brief. “[A] ‘collateral
challenge may not do service for an appeal.’” United States v.
Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc). If a 28
U.S.C. § 2255 movant could have raised his jurisdictional or
constitutional issues on direct appeal, he may not raise them for
the first time on collateral review unless he shows cause for his
No. 03-20636
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procedural default and actual prejudice resulting from the error
or that the constitutional violation has probably resulted in the
conviction of one who is actually innocent. See id. at 232. To
satisfy the “cause” standard, a petitioner must “show that ‘some
objective factor external to the defense’ prevented him from
raising on direct appeal the claim he now advances.” United
States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (citations
omitted).
We have determined that Liedtke’s allegations do not
establish “cause” for his procedural default. See id. Because
Liedtke has failed to overcome the procedural bar, he is not
entitled to relief. See Shaid, 937 F.2d at 232.
Denial of leave to amend
Lietke contends that the district court erred in denying
leave to amend his 28 U.S.C. § 2255 motion. “It is within the
district court’s discretion to deny a motion to amend if it is
futile.” Stripling v. Jordan Production Co., LLC, 234 F.3d 863,
872-73 (5th Cir. 2000). Because Liedtke has failed to establish
cause for his procedural default with respect to his direct
appeal, he cannot meet the cause-and-prejudice requirement with
respect to the claims he sought to add by way of amendment. See
Shaid, 937 F.2d at 232. The district court did not reversibly
err in denying leave to amend. See Stripling, 234 F.3d at 872-
73.
AFFIRMED.