Local Rule 47.5.1 provides: “The publication of opinions that have no

precedential value and merely decide particular cases on the basis of wellsettled principles of law imposes needless expense on the public and burdens on

the legal profession.” Pursuant to that rule, the court has determined that this

opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_________________________

No. 95-30384

Summary Calendar

_________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

KENNETH RANDALL,

Defendant-Appellant.

________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(CA 95 456 (CR 88 261 D))

_________________________________________

October 3, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Kenneth Randall appeals his motion brought pursuant to

28 U.S.C. § 2255. Finding no error, we affirm.

I.

In 1988, a jury found Randall guilty of conspiracy to possess

with intent to distribute approximately two kilograms of cocaine,
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possession with intent to distribute approximately two kilograms of

cocaine, and using a firearm during the commission of a drugtrafficking offense. He was sentenced to serve concurrent terms of

78 months in prison for the drug offenses, a consecutive term of 78

months for the drug offenses, and a consecutive term of 60 months

for the firearm offense. In this appeal, which involves a

successive § 2255 motion, Randall challenges the quantity of

cocaine used to calculate his sentence and his counsel’s effectiveness for failing to refute the calculation.

On direct appeal, Randall challenged his sentence only on the

ground that he was entitled to a departure from the Sentencing

Guidelines for exceptional circumstances. Finding that “[n]o

exceptional circumstances operated in Randall’s favor” and that the

“evidence of [Randall’s] guilt was overwhelming,” we affirmed his

conviction. United States v. Randall, 887 F.2d 1262 (5th Cir.

1989).

In March 1991, Randall filed his first § 2255 motion,

admitting that he “was rightfully convicted on counts one and two”;

he did not challenge his sentence. The district court denied

Randall’s motion, and we affirmed. 

Randall filed a second § 2255 motion in November 1992, arguing

in favor of a sentence adjustment but not questioning the quantity

of cocaine used to determine his sentence. Rather, he asserted

that his sentence should be reduced because he was less culpable

than his codefendants, his criminal conduct amounted to “aberrant

behavior,” and he had accepted responsibility. He also argued that
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his attorney was ineffective because he failed to persuade the jury

that the firearm was not “used” to facilitate a drug transaction

and failed to persuade the sentencing court to deviate from the

Sentencing Guidelines. 

The district court dismissed Randall’s motion as an abuse of

the writ and, alternatively, because his claims were not subject to

relief under § 2255. We affirmed the dismissal of Randall’s motion

as “abusive under Rule 9(b).” 

Before we affirmed the denial of the second § 2255 motion,

Randall filed a motion to correct his sentence pursuant to FED. R.

CRIM. P. 35 and 18 U.S.C. § 3582(c)(2). He asserted that he had not

previously seen the DEA lab report, that the report showed that the

drug quantity involved was less than two kilograms, and that his

base offense level should have been 26 instead of 28. 

The district court concluded that Randall’s motion was not

cognizable under rule 35 or § 3582(c)(2), and that if it were

construed as a third § 2255 motion, dismissal was appropriate.

Randall’s attorney had been given the drug report during pre-trial

discovery. Randall could not show cause or prejudice for his

failure to raise this argument previously, and even if his argument

were properly before the court, it lacked constitutional dimension.

On appeal, Randall challenged the decision and the court’s

failure to provide notice that it was considering dismissal

pursuant to rule 9(b). We affirmed, explaining that Randall’s

claim was not of constitutional dimension and could have been

raised on direct appeal. Additionally, we stated that Randall’s
4

motion was properly denied on the merits. The court did not reach

the rule 9 issues.

In February 1995, Randall filed the current § 2255 motion. He

asserted ineffective assistance of counsel as cause for his failure

previously to raise the drug-quantity-sentencing issue, but he did

not re-assert the sentencing issue, which accordingly is not before

us. In support of his ineffectiveness claim, Randall maintained

that the prosecution’s transmission of erroneous information

regarding the drug quantity involved, and counsel’s failure to

check the amount and contest the inaccuracy, constituted external

objective factors that impeded his ability to raise this issue

previously. 

Randall also asserted that counsel’s failure to raise this

issue caused him prejudice because he is serving a sentence that is

fifteen months longer than he would have received if the proper

base offense level would have been used at sentencing. In the

alternative, Randall requested relief pursuant to FED. R. CRIM.

P. 36.

The district court denied Randall’s motion on four grounds:

(1) the motion was barred as res judicata because it failed “to

allege new or different grounds for relief and the prior determinations were on the merits”; (2) the motion was an abuse of the writ

under Rule 9(b) of the Rules Governing § 2255 Proceedings, and

Randall did not show cause, prejudice, or a fundamental miscarriage

of justice; (3) the motion was without merit; and (4) the motion

was a request for relief because of a clerical error. Randall
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filed a timely notice of appeal and requested permission to proceed

in forma pauperis, which the district court denied. 

II.

Randall asserts that this ineffectiveness argument has not

been litigated previously because he and his attorney did not know

of the error in drug calculation until Randall received a copy of

the drug report on April 9, 1993. Thus, Randall asserts that res

judicata should not bar our consideration of his claim.

Rule 9(b) provides that a “successive motion may be dismissed

if the judge finds that it fails to allege new or different grounds

for relief and the prior determination was on the merits.” A

district court’s dismissal under rule 9(b) is reviewed for abuse of

discretion. United States v. Flores, 981 F.2d 231, 234 (5th Cir.

1993).

The district court concluded that Randall’s argument was

foreclosed by res judicata because “he appealed his sentence on the

grounds that he was denied effective assistance of counsel at his

sentencing” and raised the same argument in his second § 2255

motion. The government points out that Randall admitted in a 1993

response that his attorney had received a copy of the report and

that Randall referenced the lab report in his motion for correction

of sentence.

The record reveals that, as the district court correctly

concluded, Randall previously levied an unsuccessful challenge to

the drug calculation in documents filed with the district court in
 The McCleskey standard applies to both § 2254 and § 2255 cases. Flores,

981 F.2d at 234.

6

August and September 1993, at which time he did reference the DEA

report. We affirmed the district court’s rejection of Randall’s

argument. Randall admitted that his attorney was provided a copy

of the drug report. 

Randall also argued unsuccessfully in his second § 2255 motion

that counsel provided ineffective assistance during sentencing, and

we affirmed that decision. Thus, the record supports the

dismissal of Randall’s case, because he failed to allege new

grounds for relief and the previous determinations were on the

merits.

Even if the specific ineffectiveness argument Randall now

asserts was not previously raised, the district court held that his

§ 2255 motion was properly dismissed as an abuse of the writ.

Under rule 9(b), successive § 2255 motions may be dismissed if new

and different grounds are alleged and the court finds that the

failure of the movant to assert those grounds in a prior motion

constituted an abuse of the procedure. A court may not reach the

merits of § 2255 motions raising new claims unless the movant

establishes cause for not raising the point in a prior motion and

prejudice if the court fails to consider it. McCleskey v. Zant,

499 U.S. 467, 493-94 (1991);1 Saahir v. Collins, 956 F.2d 115, 118

(5th Cir. 1992). A court need not consider whether there is actual

prejudice if the movant fails to show cause. McCleskey, 499 U.S.

at 502.
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To demonstrate “cause,” the movant must show that “some

objective factor external to the defense impeded counsel’s efforts”

to raise the claim in the initial motion. McCleskey, 499 U.S. at

493 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). A

movant’s pro se status cannot constitute “cause,” and if the

factual and legal basis for an argument was reasonably available to

him when he filed an earlier motion, his delay in raising the issue

will not be excused. Saahir, 956 F.2d at 118.

The factual and legal bases for Randall’s ineffectiveness

claim were reasonably available when he filed his motion for

modification of sentence. He argued in that motion that counsel

had received a copy of the drug report and that the drug quantity

had been improperly imputed. The district court and our court

treated Randall’s motion for modification of sentence as a third

§ 2255 motion. Furthermore, in his second § 2255 motion, Randall

argued that his attorney was ineffective during sentencing. 

All the aspects of Randall’s current ineffectiveness claim

were reasonably available to him at the time he filed his previous

motions and, although he asserts counsel’s ineffectiveness as cause

for his failure previously to raise this argument, the record

refutes his position. Randall has failed to demonstrate cause for

his failure to raise the issue in a prior motion; therefore, we

need not consider whether there is prejudice. Saahir, 956 F.2d at

118.

Even if a movant cannot meet the cause-and-prejudice standard,

a federal court may hear the merits of a successive motion if the
8

failure to hear the claims would constitute a fundamental miscarriage of justice. Flores, 981 F.2d at 236; see McCleskey, 499 U.S.

at 493. In order to show a fundamental miscarriage of justice, a

§ 2255 movant must establish that a constitutional violation

probably caused him to be convicted of a crime of which he is

innocent. Flores, 981 F.2d at 236.

Not only has Randall failed to allege factual innocence, but

he admits that a fundamental miscarriage of justice did not occur.

Further, in his first § 2255 motion, Randall admitted that he “was

rightfully convicted on counts one and two” (the drug convictions),

and he does not now maintain factual innocence of these charges.

Because Randall has failed to offer a legitimate reason for failing

to raise this ineffectiveness claim previously, and he has not

alleged anything that would establish that the matter complained of

resulted in the conviction of one who is factually innocent, the

district court did not abuse its discretion in dismissing his

§ 2255 motion as abusive.

AFFIRMED.