* After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. This Order and Judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfa vors 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 24 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. RONALD HERLOPH SATHER, Defendant - Appellant. No. 01-7083 (D.C. No. 99-CR-29-X) (E.D. Oklahoma)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, andEBEL and LUCERO , Circuit Judges.
Ronald Herloph Sather was convicted of eight charge s arising from his efforts to avoid paying taxes. We affirmed this co nviction in an order and judgment filed January 11, 2001, United States v. S ather , 99-7144, 2001 WL 28040 (10th Cir. Jan. 11, 2001), and the United States Supreme Court denied certiorari on April 23, 2001, Sather v. United Stat es , 532 U.S. 1001 (2001).1 While Sather’s submissions are quite confusing, i t appears that the thrust

of his argument is that the indictment should have acknowledged several asserted facts that he believes to be favorable to him: thathe voluntarily dismissed his fraudulent bankruptcy filing, that he belatedly fil ed income tax returns, that certain of his actions occurred before he was aware that he was being investigated, and that he used a legitimate tax ide ntification number in place of his social security number. Sather also apparently challenges his conviction based on his arguments that willfulness is an element of a violation of 18 U.S.C. § 157, that Sather could not be charged with three separat e offenses under § 157, that only structuring efforts in excess of $10,000 violate 31 U.S.C. § 5324(a)(3), and that Sather was erroneously punished as a repeat of fender under 42 U.S.C. § 408(a). We note that Sather’s characterization o f his arguments as challenges to the sufficiency of the indictment appears doubtful, although nothing turns on this point. - 2 - Among the issues raised by Herloph in his appeal an d rejected by this court was his argument that the district court should have gr anted his motion to strike portions of the indictment as surplusage. Sather , 2001 WL 28040 at *2. The facts of the case are recounted in our prior order and judgment and will not be repeated here. On June 20, 2001, over six months after this court affirmed his conviction and nearly two months after the Supreme Court denie d certiorari, Sather filed a pro se motion styled “Emergency Motion to Dismiss I ndictment Under F.R.Crim.P. Rule 12(b)(2).” In this motion, Satherargued that his indictment failed to allege certain facts that he argued were essential elements. 1 The district court denied the motion in a minute order not inclu ded in the record. (ROA Vol I, Docket p. 15, #41.) From this denial Sather now ap peals.- 3 -

We affirm the district court’s denial of Sather’s m otion on the ground that his challenges are procedurally barred because rais ed after his conviction became final. See United States v. Frady , 456 U.S. 152, 162-67 (1982) (holding that procedural bar applies to challenges raised “after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of t he conviction on appeal”); United States v. Allen , 16 F.3d 377, 378 (10th Cir. 1994) (“Section 2255 is not available to test the legality of matters that shou ld have been raised on direct appeal.” (internal quotation marks and alteration o mitted)). Although Sather styled his challenge as an “emergency motion” underFederal Rule of Criminal Procedure 12(b)(2) rather than as a motion for post -conviction relief under 28 U.S.C. § 2255, such artful pleading avails Sather n othing. See Fed. R. Crim. P. 12(b)(2) (“Defenses and objections based on defects in the indictment [asserting] . . . that it fails . . . to charge an offense shal l be noticed by the court at any time during the pendency of the proceedings . . . .” (emphasis added)). Sather makes no effort to argue any cause for his p rocedural default. Although we construe a pro se litigant’s pleadings liberally, Sather is obligated to show cause and prejudice or a fundamental miscarria ge of justice to excuse his procedural default. George v. Perrill , 62 F.3d 333, 335 (10th Cir. 1995).- 4 -

Accordingly, Sather’s present arguments are procedu rally barred, and the judgment of the district court therefore is AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge