* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-20636

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

J. BRENT LIEDTKE,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-01-CV-3973

USDC No. H-97-CR-52-3

--------------------

Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.

PER CURIAM:*

J. Brent Liedtke, federal prisoner # 83237-079, was

convicted by a jury of one count of conspiring to manufacture in

excess of one kilogram of a mixture and substance containing a

detectable amount of methamphetamine (Count One) and of one count

of possession of phenylacetic acid with the intent to manufacture

methamphetamine (Count Four). He was sentenced to concurrent

terms of 233 months’ imprisonment and five years’ supervised

release on each count. Liedtke’s direct appeal was dismissed

when Liedtke failed to file a timely appellate brief. 
No. 03-20636

-2-

Liedtke filed a 28 U.S.C. § 2255 motion raising 12 issues. 

He was denied leave to amend his motion. The district court

denied relief. This court granted Liedtke’s motion for a

certificate of appealability (COA) on the following issues: 

(1) Whether, assuming the truth of Liedtke’s allegations

regarding the actions of prison officials, Liedtke could

establish a claim for denial of access to the courts; (2) whether

Liedtke had established cause and prejudice for failing to

challenge on direct appeal his five-year term of supervised

release on Count Four; and (3) whether the district court erred

in denying leave to amend. A COA was denied as to all other

issues. 

Denial of access to the courts

Liedtke’s claim of denial of access to the courts revolves

around allegations regarding the handling of his pro se appellate

brief by prison officials. He avers that he had substantially

completed the brief by October 21, 2000, but that he was denied

access to the document until November 2, 2000, due to closure of

the prison library and a prison lockdown. Upon regaining access, 

Liedtke avers, he placed the brief in the prison mail system for

delivery to his wife for completion and filing, and requested an

extension of time from this court. Liedtke alleges that prison

officials delayed mailing the brief for several days.

To prevail on a claim that his right of access to the courts

has been violated, a prisoner must demonstrate prejudice by
No. 03-20636

-3-

showing that his ability to pursue a “nonfrivolous,” “arguable”

legal claim was hindered by the defendants’ actions. See

Christopher v. Harbury, 536 U.S. 403, 415 (2002). The right of

access to the court is not unlimited, but “encompasses only a

reasonably adequate opportunity to file nonfrivolous legal claims

challenging . . . convictions or conditions of confinement.” 

Jones v. Greininger, 188 F.3d 322, 325 (5th Cir. 1999). 

A review of this court’s records shows that Liedtke had from

July 5, 2000, to November 6, 2000, to timely file an appellate

brief. See FED. R. APP. P. 26(a)(1). Liedtke was granted

several extensions of time, and, despite being informed that no

more extensions would be granted, he failed to timely file his

appellate brief and instead requested yet another extension. The

facts alleged by Liedtke do not rise to a constitutional

infringement on the right of access to the courts. See

Christopher, 536 U.S. at 415; Jones, 188 F.3d at 325.

Cause and prejudice

Based on the same facts supporting his claim of denial of

access to the courts, Liedtke argues that he has established

cause for failing to file his appellate brief. “[A] ‘collateral

challenge may not do service for an appeal.’” United States v.

Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc). If a 28

U.S.C. § 2255 movant could have raised his jurisdictional or

constitutional issues on direct appeal, he may not raise them for

the first time on collateral review unless he shows cause for his
No. 03-20636

-4-

procedural default and actual prejudice resulting from the error

or that the constitutional violation has probably resulted in the

conviction of one who is actually innocent. See id. at 232. To

satisfy the “cause” standard, a petitioner must “show that ‘some

objective factor external to the defense’ prevented him from

raising on direct appeal the claim he now advances.” United

States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (citations

omitted). 

We have determined that Liedtke’s allegations do not

establish “cause” for his procedural default. See id. Because

Liedtke has failed to overcome the procedural bar, he is not

entitled to relief. See Shaid, 937 F.2d at 232. 

Denial of leave to amend

Lietke contends that the district court erred in denying 

leave to amend his 28 U.S.C. § 2255 motion. “It is within the

district court’s discretion to deny a motion to amend if it is

futile.” Stripling v. Jordan Production Co., LLC, 234 F.3d 863,

872-73 (5th Cir. 2000). Because Liedtke has failed to establish

cause for his procedural default with respect to his direct

appeal, he cannot meet the cause-and-prejudice requirement with

respect to the claims he sought to add by way of amendment. See

Shaid, 937 F.2d at 232. The district court did not reversibly

err in denying leave to amend. See Stripling, 234 F.3d at 872-

73. 

AFFIRMED.