IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30384
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
KENNETH RANDALL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(CA 95 456 (CR 88 261 D))
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October 3, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Kenneth Randall appeals his motion brought pursuant to
28 U.S.C. § 2255. Finding no error, we affirm.
I.
In 1988, a jury found Randall guilty of conspiracy to possess
with intent to distribute approximately two kilograms of cocaine,
Local Rule 47.5.1 provides: “The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession.” Pursuant to that rule, the court has determined that this
opinion should not be published.
possession with intent to distribute approximately two kilograms of
cocaine, and using a firearm during the commission of a drug-
trafficking offense. He was sentenced to serve concurrent terms of
78 months in prison for the drug offenses, a consecutive term of 78
months for the drug offenses, and a consecutive term of 60 months
for the firearm offense. In this appeal, which involves a
successive § 2255 motion, Randall challenges the quantity of
cocaine used to calculate his sentence and his counsel’s effective-
ness for failing to refute the calculation.
On direct appeal, Randall challenged his sentence only on the
ground that he was entitled to a departure from the Sentencing
Guidelines for exceptional circumstances. Finding that “[n]o
exceptional circumstances operated in Randall’s favor” and that the
“evidence of [Randall’s] guilt was overwhelming,” we affirmed his
conviction. United States v. Randall, 887 F.2d 1262 (5th Cir.
1989).
In March 1991, Randall filed his first § 2255 motion,
admitting that he “was rightfully convicted on counts one and two”;
he did not challenge his sentence. The district court denied
Randall’s motion, and we affirmed.
Randall filed a second § 2255 motion in November 1992, arguing
in favor of a sentence adjustment but not questioning the quantity
of cocaine used to determine his sentence. Rather, he asserted
that his sentence should be reduced because he was less culpable
than his codefendants, his criminal conduct amounted to “aberrant
behavior,” and he had accepted responsibility. He also argued that
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his attorney was ineffective because he failed to persuade the jury
that the firearm was not “used” to facilitate a drug transaction
and failed to persuade the sentencing court to deviate from the
Sentencing Guidelines.
The district court dismissed Randall’s motion as an abuse of
the writ and, alternatively, because his claims were not subject to
relief under § 2255. We affirmed the dismissal of Randall’s motion
as “abusive under Rule 9(b).”
Before we affirmed the denial of the second § 2255 motion,
Randall filed a motion to correct his sentence pursuant to FED. R.
CRIM. P. 35 and 18 U.S.C. § 3582(c)(2). He asserted that he had not
previously seen the DEA lab report, that the report showed that the
drug quantity involved was less than two kilograms, and that his
base offense level should have been 26 instead of 28.
The district court concluded that Randall’s motion was not
cognizable under rule 35 or § 3582(c)(2), and that if it were
construed as a third § 2255 motion, dismissal was appropriate.
Randall’s attorney had been given the drug report during pre-trial
discovery. Randall could not show cause or prejudice for his
failure to raise this argument previously, and even if his argument
were properly before the court, it lacked constitutional dimension.
On appeal, Randall challenged the decision and the court’s
failure to provide notice that it was considering dismissal
pursuant to rule 9(b). We affirmed, explaining that Randall’s
claim was not of constitutional dimension and could have been
raised on direct appeal. Additionally, we stated that Randall’s
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motion was properly denied on the merits. The court did not reach
the rule 9 issues.
In February 1995, Randall filed the current § 2255 motion. He
asserted ineffective assistance of counsel as cause for his failure
previously to raise the drug-quantity-sentencing issue, but he did
not re-assert the sentencing issue, which accordingly is not before
us. In support of his ineffectiveness claim, Randall maintained
that the prosecution’s transmission of erroneous information
regarding the drug quantity involved, and counsel’s failure to
check the amount and contest the inaccuracy, constituted external
objective factors that impeded his ability to raise this issue
previously.
Randall also asserted that counsel’s failure to raise this
issue caused him prejudice because he is serving a sentence that is
fifteen months longer than he would have received if the proper
base offense level would have been used at sentencing. In the
alternative, Randall requested relief pursuant to FED. R. CRIM.
P. 36.
The district court denied Randall’s motion on four grounds:
(1) the motion was barred as res judicata because it failed “to
allege new or different grounds for relief and the prior determina-
tions were on the merits”; (2) the motion was an abuse of the writ
under Rule 9(b) of the Rules Governing § 2255 Proceedings, and
Randall did not show cause, prejudice, or a fundamental miscarriage
of justice; (3) the motion was without merit; and (4) the motion
was a request for relief because of a clerical error. Randall
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filed a timely notice of appeal and requested permission to proceed
in forma pauperis, which the district court denied.
II.
Randall asserts that this ineffectiveness argument has not
been litigated previously because he and his attorney did not know
of the error in drug calculation until Randall received a copy of
the drug report on April 9, 1993. Thus, Randall asserts that res
judicata should not bar our consideration of his claim.
Rule 9(b) provides that a “successive motion may be dismissed
if the judge finds that it fails to allege new or different grounds
for relief and the prior determination was on the merits.” A
district court’s dismissal under rule 9(b) is reviewed for abuse of
discretion. United States v. Flores, 981 F.2d 231, 234 (5th Cir.
1993).
The district court concluded that Randall’s argument was
foreclosed by res judicata because “he appealed his sentence on the
grounds that he was denied effective assistance of counsel at his
sentencing” and raised the same argument in his second § 2255
motion. The government points out that Randall admitted in a 1993
response that his attorney had received a copy of the report and
that Randall referenced the lab report in his motion for correction
of sentence.
The record reveals that, as the district court correctly
concluded, Randall previously levied an unsuccessful challenge to
the drug calculation in documents filed with the district court in
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August and September 1993, at which time he did reference the DEA
report. We affirmed the district court’s rejection of Randall’s
argument. Randall admitted that his attorney was provided a copy
of the drug report.
Randall also argued unsuccessfully in his second § 2255 motion
that counsel provided ineffective assistance during sentencing, and
we affirmed that decision. Thus, the record supports the
dismissal of Randall’s case, because he failed to allege new
grounds for relief and the previous determinations were on the
merits.
Even if the specific ineffectiveness argument Randall now
asserts was not previously raised, the district court held that his
§ 2255 motion was properly dismissed as an abuse of the writ.
Under rule 9(b), successive § 2255 motions may be dismissed if new
and different grounds are alleged and the court finds that the
failure of the movant to assert those grounds in a prior motion
constituted an abuse of the procedure. A court may not reach the
merits of § 2255 motions raising new claims unless the movant
establishes cause for not raising the point in a prior motion and
prejudice if the court fails to consider it. McCleskey v. Zant,
499 U.S. 467, 493-94 (1991);1 Saahir v. Collins, 956 F.2d 115, 118
(5th Cir. 1992). A court need not consider whether there is actual
prejudice if the movant fails to show cause. McCleskey, 499 U.S.
at 502.
The McCleskey standard applies to both § 2254 and § 2255 cases. Flores,
981 F.2d at 234.
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To demonstrate “cause,” the movant must show that “some
objective factor external to the defense impeded counsel’s efforts”
to raise the claim in the initial motion. McCleskey, 499 U.S. at
493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A
movant’s pro se status cannot constitute “cause,” and if the
factual and legal basis for an argument was reasonably available to
him when he filed an earlier motion, his delay in raising the issue
will not be excused. Saahir, 956 F.2d at 118.
The factual and legal bases for Randall’s ineffectiveness
claim were reasonably available when he filed his motion for
modification of sentence. He argued in that motion that counsel
had received a copy of the drug report and that the drug quantity
had been improperly imputed. The district court and our court
treated Randall’s motion for modification of sentence as a third
§ 2255 motion. Furthermore, in his second § 2255 motion, Randall
argued that his attorney was ineffective during sentencing.
All the aspects of Randall’s current ineffectiveness claim
were reasonably available to him at the time he filed his previous
motions and, although he asserts counsel’s ineffectiveness as cause
for his failure previously to raise this argument, the record
refutes his position. Randall has failed to demonstrate cause for
his failure to raise the issue in a prior motion; therefore, we
need not consider whether there is prejudice. Saahir, 956 F.2d at
118.
Even if a movant cannot meet the cause-and-prejudice standard,
a federal court may hear the merits of a successive motion if the
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failure to hear the claims would constitute a fundamental miscar-
riage of justice. Flores, 981 F.2d at 236; see McCleskey, 499 U.S.
at 493. In order to show a fundamental miscarriage of justice, a
§ 2255 movant must establish that a constitutional violation
probably caused him to be convicted of a crime of which he is
innocent. Flores, 981 F.2d at 236.
Not only has Randall failed to allege factual innocence, but
he admits that a fundamental miscarriage of justice did not occur.
Further, in his first § 2255 motion, Randall admitted that he “was
rightfully convicted on counts one and two” (the drug convictions),
and he does not now maintain factual innocence of these charges.
Because Randall has failed to offer a legitimate reason for failing
to raise this ineffectiveness claim previously, and he has not
alleged anything that would establish that the matter complained of
resulted in the conviction of one who is factually innocent, the
district court did not abuse its discretion in dismissing his
§ 2255 motion as abusive.
AFFIRMED.
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