United States v. Lloyd

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS JUN 30 1998
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 97-7110
v. (D.C. No. 97-CV-237-S)
(EOK)
KENNETH LYNN LLOYD,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.
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.
Kenneth Lloyd, a pro se prisoner, appeals from the district court order
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
dismissing his petition for relief under 28 U.S.C. § 2255. We deny his motion for
a certificate of appealability and dismiss the appeal.
Mr. Lloyd was convicted and is currently serving a prison sentence for
being a felon in possession of a firearm shipped and transported in interstate
commerce in violation of 18 U.S.C. § 922(g). In his petition for relief he asserted
six grounds of error and contended the judgment and sentence of the district court
were unlawful. The district court concluded that Mr. Lloyd’s section 2255
petition raised the exact issues he alleged in his direct appeal, in which this court
affirmed his conviction on all grounds. See United States v. Lloyd, 13 F.3d 1450
(10th Cir. 1994). The court then dismissed the petition on the ground that a
defendant may not collaterally address issues raised unsuccessfully on direct
appeal absent a supervening change in the law. See United States v. Warner, 23
F.3d 287, 291 (10th Cir. 1994); United States v. Cook, 997 F.2d 1312, 1318 n.6
(10th Cir. 1993); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989).
Although Mr. Lloyd alluded in his section 2255 petition to ineffective
assistance of appellate counsel, an examination of the record reveals that Mr.
Lloyd failed to support this claim with any facts which would distinguish it from
his claim of ineffective assistance of trial counsel, which we rejected on direct
appeal.
On any application for collateral review, a certificate of appealability will
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issue only if the “applicant has made a substantial showing of the denial of a
constitutional right.” United States v. Simmonds, 111 F.3d 737, 746 (10th Cir.
1997). We agree with the district court’s determination that Mr. Lloyd’s petition
is entirely duplicative of his direct appeal. Because Mr. Lloyd’s petition raises no
issues which differ from those raised as part of his direct appeal, he has not made
a substantial showing of the denial of a constitutional right.
The certificate of appealability is DENIED and the appeal is DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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