* This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and 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. 

** Honorable Wesley E. Brown, Senior District Judge, United States District Court for

the District of Kansas, sitting by designation. 

UNITED STATES COURT OF APPEALS

Filed 4/30/96

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID J. BOATRIGHT,

Defendant-Appellant.

No. 95-2149

(D.C. No. CIV-95-10-JB)

(D. N.M.)

ORDER AND JUDGMENT*

Before EBEL AND BARRETT, Circuit Judges, and BROWN.**

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties' request for a decision on the briefs without oral argument.
22

See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Pro se appellant David J. Boatright appeals an order of the district court dismissing

with prejudice his second motion to vacate, set aside, or correct his sentence pursuant to 28

U.S.C. § 2255. The district court dismissed the motion as an abuse of process.

In November 1989, Boatright entered a nolo contendere plea to one misdemeanor

count of failing to report a prohibited transaction under the Employee Retirement and Income

Security Act (ERISA), and was sentenced to five years of probation. He did not file a direct

appeal of his conviction.

Boatright's license as an actuary was revoked in January 1991. Aplt. App. at 23-24.

In April 1991, the Department of Labor brought a civil action against Boatright based on the

same ERISA violations, and a judgment was entered against him in February 1993. Id. at 16-

18.

In December 1992, while the civil action was pending, Boatright petitioned for

withdrawal of his plea under 28 U.S.C. § 2255 on the grounds that his plea was unlawfully

obtained. He alleged the charge against him was predicated on a form he claimed had been

falsified by a government investigator. The district court denied that § 2255 petition, and its

denial was affirmed on appeal. United States v. Boatright, No. 93-2173, 1994 WL 50467

(10th Cir. Feb. 22, 1994).
1 At our request, the district court clerk supplemented the record on appeal with the

separately docketed district court record from Boatright's first § 2255 motion.

33

Boatright filed this second motion to withdraw his plea in November 1994, which the

district court properly characterized as a second motion to vacate, set aside, or correct his

sentence under § 2255. In this § 2255 motion, Boatright alleged that, in violation of his plea

agreement and Fed. R. Crim. P. 11(e)(6), the government was responsible for the termination

of his license and had brought the civil suit against him using information he had provided

to department of labor attorney Jeffery D. Cohen as part of his plea agreement. He also

contends that Cohen's dual role in both the criminal and civil actions was improper.

The district court found the second petition was an abuse of process pursuant to Rule

9(b) of the Rules Governing § 2255 Proceedings because Boatright unjustifiably failed to

assert his present claims in his earlier § 2255 petition. We review the district court's Rule

9(b) dismissal of Boatright's § 2255 motion for an abuse of discretion, United States v.

Cullum, 47 F.3d 763, 764 (5th Cir. 1995), and we affirm.1

Under the abuse of the writ doctrine in Rule 9(b), Boatright's second § 2255 motion

may be dismissed unless he excuses his failure to raise his contentions earlier "by showing

cause and prejudice therefrom or by showing that 'a fundamental miscarriage of justice would

result from a failure to entertain the claim[s].'" United States v. Richards, 5 F.3d 1369, 1370

(10th Cir. 1993)(quoting McCleskey v. Zant, 499 U.S. 467, 494-95 (1991)). To show

"cause" under this cause and prejudice test, defendant must demonstrate that some objective
44

and external failure prevented him from raising his claims earlier, something that cannot be

fairly attributable to him. Coleman v. Thompson, 501 U.S. 722, 753 (1991).

Boatright offers three reasons why he did not raise his arguments as part of his first

§ 2255 motion: 1) he did not discover the government's plea offer letter stating that, "any

proffered information will not be used against your client should we fail to finalize an

agreement," R. Vol. 1, Tab 1, Ex. B, until his first § 2255 motion was on appeal, id. at Tab

5, p. 2; 2) he made a "judgment call" to wait to see how the appeals in the civil matter would

be resolved before seeking redress through a second § 2255 motion, id. at Tab 5, p. 5; and

3) ineffective assistance of counsel prevented him from raising the grounds earlier, R. Vol.

II, Tab 21, p.4.

The factual bases for Boatright's new claims were clearly available to him when he

filed his first § 2255 motion. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Boatright

could have raised his contentions under the plea agreement and Rule 11(e)(6) without the

plea offer letter. Therefore, he was not prevented by some external cause from raising his

arguments as part of his prior motion. Furthermore, given that Boatright appeared pro se at

his first § 2255 motion and that there is no constitutional right to counsel in a § 2255

proceeding, Pennsylvania v. Finley, 481 U.S. 551, 555 (1987), his conclusory allegation of

ineffectiveness of counsel does not establish cause. Indeed, Boatright's admission that he

made a "judgment call" to wait until resolution of his civil suit before raising the claims he

now asserts defeats any claimed basis for cause. Contrary to Boatright's contention, an
2 Without deciding whether the amendments to 28 U.S.C. § 2255 signed into law on

April 24, 1996 are applicable to this case, we note that the result in this case under these

amendments would be the same.

55

evidentiary hearing was unnecessary because there are no controverted factual issues to be

resolved in this case.

 Finally, we are not persuaded by Boatright's claim of factual innocence in an attempt

to show that a fundamental miscarriage of justice would result from a failure to entertain his

claims. As we noted in Boatright, 1994 WL 50467, at *2, "Boatright admitted, under oath,

that he made an agreement with a business associate not to report this pension transaction."

See also Zebelman v. United States, 339 F.2d 484, 485 (10th Cir. 1964)(a plea of nolo

contendere is an admission of guilt for purposes of the case). The district court did not abuse

its discretion in dismissing Boatright's motion. Accordingly, the judgment of the United

States District Court for the District of New Mexico is AFFIRMED.2

The mandate shall issue forthwith.

Entered for the Court

James E. Barrett 

Senior Circuit Judge