* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 12/5/96 FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. SAUNDRA AMANDA DAVIS,

Defendant-Appellant. No. 96-6112 (D.C. No. CIV-91-1673-A) (W.D. Okla.)

ORDER AND JUDGMENT *
Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Saundra Amanda Davis appeals from the district court’s denial of her motion to vacate, set aside, or correct her sentenc e pursuant to 28 U.S.C. § 2255. The district court concluded that Ms. Davis’s motio n was successive under Rule 9(b) of the Rules Governing Section 2255 Proce edings. We review the court’s determination that a motion is successive f or abuse of the court’s discretion. See Hawkins v. Evans , 64 F.3d 543, 546 (10th Cir. 1995). In August 1989, Ms. Davis pleaded guilty to conspir acy to distribute heroin and was sentenced, inter alia, to 210 months’ impri sonment. She did not take a direct appeal. On January 22, 1990, she filed her first § 2255 motion seeking to vacate her conviction and sentence on the basis that the evidence against her was insufficient. The district court denied the motion on the basis that the issue was procedurally defaulted, since Ms. Davis had not pro vided adequate explanation why she did not raise it on direct appeal. For purposes of successiveness, this was a decision on the merits, see Hawkins , 64 F.3d at 547, and Ms. Davis did not appeal. On June 6, 1990, Ms. Davis filed a motion for reduction of sentence pursuant to Fed. R. Crim. P. 35. The court denied this motion, and again she did not appeal. On August 14, 1990, she filed a motion to dismiss her indictment, conviction and sentence for lack of jurisdiction, w hich the district court denied-3-

that same day. She did appeal the denial of this m otion, and this court affirmed, describing her motion as “patently frivolous.” Uni ted States v. Davis , No. 90-6287 (10th Cir. Apr. 18, 1991)(order and judgment). Ms. Davis then filed the instant § 2255 motion, in which she raises six issues: (1) ineffective assistance of counsel; (2) breach of plea agreement; (3) violation of privilege against self-incrimination; (4) inaccuracies in the presentence report; (5) improper calculation of sen tence; and (6) application of mandatory minimum sentence in violation of due proc ess. The district court referred the case to the magistrate judge, who reco mmended that the motion be denied as successive because Ms. Davis did not rais e any issues that could not have been raised in the first motion and she failed to show cause for excluding them from her first motion. The district court ado pted the magistrate judge’s report and recommendation and denied the motion. A district court may deny a second § 2255 motion as abusive or successive unless the defendant “excuses his failure to raise the issue earlier by showing cause for failing to raise it and prejudice therefr om or by showing that a fundamental miscarriage of justice would result fro m a failure to entertain the claim.” United States v. Richards , 5 F.3d 1369, 1370 (10th Cir. 1993)(quotation omitted). Ms. Davis contends that she should be ex cused for her successive § 2255 motion because she “became knowledgeable of the facts [only] after she-4-

received her Sentencing Transcript . . . , her pleaagreement, and a copy of her pre-sentence report, then compare[d] the findings w ith her version of what actually took place, along with what the laws will and will not allow.” Appellant’s Reply Br. at 3. This allegation of cau se is clearly insufficient to excuse her successive motion. In addition, Ms. Dav is does not claim to be innocent of the conspiracy charge, and all of the i ssues she raises relate to the sentence she received. Thus, she cannot show that failure to consider her second § 2255 motion would result in a fundamental miscarr iage of justice because that requires a showing of actual innocence, and “[a] pe rson cannot be actually innocent of a noncapital sentence.” Richards , 5 F.3d at 1371. The district court did not abuse its discretion in denying Ms. Davis’s motion as successive. Therefore, the judgment of t he district court is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court
John W. Lungstrum District Judge