United States v. Riggs ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 1, 2010
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 10-3196
(D.C. Nos. 2:10-CV-02203-JWL and
MICHAEL L. RIGGS, 2:07-CR-20095-JWL)
(D. Kan.)
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.
Michael Riggs pleaded guilty to possession of a firearm by a felon, 18
U.S.C. § 922(g)(1), and was sentenced to 180 months’ imprisonment. This court
affirmed his sentence on direct appeal. United States v. Riggs, 302 F. App’x 805,
813 (10th Cir. 2008). He now seeks a certificate of appealability (“COA”) in
order to challenge the district court’s denial of his motion under 28 U.S.C. § 2255seeking collateral review of his conviction.
*
This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Because Mr. Riggs proceeds pro se, we construe his filings liberally. See
Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007). This court has
repeatedly stated, however, that “[s]ection 2255 motions are not available to test
the legality of matters which should have been raised on direct appeal . . . unless
[the petitioner] can show cause excusing his procedural default and actual
prejudice resulting from the errors of which he complains, or can show 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). As the district court
noted, Mr. Riggs could’ve advanced — but didn’t mention — his current
arguments regarding the constitutionality of 18 U.S.C. § 922(g)(1) on direct
appeal. After all, the cases he seeks to rely on — United States v. Lopez, 514
U.S. 549 (1995), United States v. Morrison, 529 U.S. 598 (2000), and Jones v.
United States, 529 U.S. 848 (2000) — were decided years before he filed his
appeal.
Mr. Riggs has not shown cause and prejudice to overcome his procedural
default, and refusing to consider his arguments will not effect a fundamental
miscarriage of justice. We have previously considered and rejected similar
attacks on 18 U.S.C. § 922(g)(1) on multiple occasions. See, e.g., United States
v. Urbano, 563 F.3d 1150, 1153-54 (10th Cir. 2009); United States v. Finney, 316
F. App’x 752, 757-58 (10th Cir. 2009) (unpublished); United States v. Dorris, 236
F.3d 582, 584-86 (10th Cir. 2000). Accordingly, and for substantially the same
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reasons given by the district court, we deny Mr. Riggs’s application for a COA.
The appeal is dismissed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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