United States v. Deas ( 2004 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-10205
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS RAY DEAS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:94-CV-192-C/5:90-CR-13-2
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June 27, 1995
Before JONES, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Thomas Deas argues that the district court erred in raising sua
sponte Rule 9(b) and in dismissing his 28 U.S.C. § 2255 motion
for abuse of the procedure. Abuse of the procedure may be raised
sua sponte by the district court. United States v. Flores, 981
F.2d 231, 236 n.9 (5th Cir. 1993).
A district court's dismissal under Rule 9(b) is reviewed for
abuse of discretion. Id. at 234. A court may not reach the
merits of motions raising new claims unless the movant
*
Local Rule 47.5 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that this opinion should not be published.
No. 95-10205
-2-
establishes cause for not raising the point in a prior motion and
prejudice if the court fails to consider the new point.
McCleskey v. Zant, 499 U.S. 467, 493-94 (1991). To demonstrate
"cause," Deas must show that "some objective factor external to
the defense impeded counsel's efforts" to raise the claim in the
initial motion. Id. at 493, quoting Murray v. Carrier, 477 U.S.
487, 488 (1986). A movant's pro se status does not necessarily
constitute "cause," and if the factual and legal basis for an
argument was reasonably available to the movant when he filed an
earlier motion, his delay in raising the issue will not be
excused. Saahir v. Collins, 956 F.2d 115, 118 (5th Cir. 1992).
Deas has not demonstrated cause, as defined in McCleskey, and
therefore we need not consider whether there is prejudice. See
id.
Even if a movant cannot meet the cause-and-prejudice
standard, a federal court may hear the merits of a successive
motion if the movant establishes that a constitutional violation
probably caused him or her to be convicted of a crime of which he
or she is innocent. Flores, 981 F.2d at 236. Deas has failed to
allege a colorable claim of factual innocence. The district
court acted properly in dismissing his § 2255 motion as abusive.
The district court's decision is AFFIRMED.