United States v. Kenneth Lynn Lloyd

153 F.3d 729

98 CJ C.A.R. 3624

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Kenneth Lynn LLOYD, Defendant-Appellant.

No. 97-7110.

United States Court of Appeals, Tenth Circuit.

June 30, 1998.

Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.

1

ORDER AND JUDGMENT*

2

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.

3

Kenneth Lloyd, a pro se prisoner, appeals from the district court order dismissing his petition for relief under 28 U.S.C. § 2255. We deny his motion for a certificate of appealability and dismiss the appeal.

4

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).

5

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.

6

On any application for collateral review, a certificate of appealability will 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.

7

The certificate of appealability is DENIED and the appeal is DISMISSED.

*

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