FILED

United States Court of Appeals

Tenth Circuit

January 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re:

MICHAEL C. PEACH,

Movant.

No. 09-3342

(D.C. No. 6:95-CR-10052-MLB-1)

ORDER

Before TACHA, EBEL, and HARTZ, Circuit Judges.

Movant Michael C. Peach, a federal prisoner proceeding pro se, has filed a

motion for authorization to file a second or successive 28 U.S.C. § 2255 motion

to vacate, set aside or correct his sentence. We deny authorization.

Mr. Peach was convicted in 1996 of two counts of possession of crack

cocaine, with intent to distribute; two counts of using or carrying a firearm during

and in relation to a drug trafficking offense; and one count of robbery. We

affirmed his convictions and sentences on direct appeal.

In 1998, Mr. Peach filed a motion for relief under 28 U.S.C. § 2255. 

The district court denied his § 2255 motion, and he did not appeal. In 2006,

Mr. Peach filed a Fed. R. Civ. P. 60(b) motion to vacate the district court’s denial

of his § 2255 motion, arguing it had failed to address his ineffective-assistanceof-counsel claim. The district court transferred the motion to this court as an

Appellate Case: 09-3342 Document: 01018340811 Date Filed: 01/04/2010 Page: 1
-2-

unauthorized second or successive § 2255 motion, but we remanded it, ruling the

Rule 60(b) motion was not a second or successive § 2255 motion because it only

alleged a defect in the § 2255 proceedings. See Peach v. United States, 468 F.3d

1269, 1271-72 (10th Cir. 2006). On remand, the district court addressed

Mr. Peach’s ineffective-assistance-of-counsel claim and denied it on the merits. 

We denied a certificate of appealability. United States v. Peach, 241 F. App’x

530, 532 (10th Cir. 2007). In 2007, Mr. Peach filed another Rule 60(b) motion,

which the district court transferred to this court as an unauthorized second or

successive § 2255 motion. We dismissed the matter for lack of prosecution. 

In re Michael C. Peach, No. 07-3129 (10th Cir. June 29, 2009) (unpublished

order).

In his motion for authorization to file a second or successive § 2255

motion, Mr. Peach seeks to present five claims: (1) ineffective assistance of trial

counsel because his counsel failed to raise the following issues at trial; (2) the

government failed to disclose that it did not have enough grams of cocaine to

indict and prosecute him for possession with intent to distribute, and thus, only

charged him with possessing an unspecified amount of cocaine; (3) the

government misled him as to the actual statute they intended to charge him with

and listed a vague amount of cocaine in the indictment, so he was unable to

prepare a defense; (4) the indictment was missing a critical element by failing to

Appellate Case: 09-3342 Document: 01018340811 Date Filed: 01/04/2010 Page: 2
-3-

list the amount of cocaine; and (5) he received stacked counts for offenses that

were named in the same charging document.

None of Mr. Peach’s claims meet the requirements for authorization. 

To obtain authorization to file a second or successive § 2255 motion, a federal

prisoner must demonstrate that his proposed claims either depend on “newly

discovered evidence that, if proven and viewed in light of the evidence as a

whole, would be sufficient to establish by clear and convincing evidence that no

reasonable factfinder would have found [him] guilty of the offense,” § 2255(h)(1),

or rely upon “a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable,”

§ 2255(h)(2). Mr. Peach asserts that each claim is based on new evidence, but

as to each claim, he fails to identify any new evidence and merely argues that

he has only recently learned more law as it relates to his case. Legal research is

not, however, new evidence. All of the facts underlying all of his claims were

known or available to Mr. Peach at the time he filed his first § 2255 motion. 

Mr. Peach is not basing any of his claims on any new, retroactively applicable

constitutional law.

Appellate Case: 09-3342 Document: 01018340811 Date Filed: 01/04/2010 Page: 3
-4-

Accordingly, we DENY authorization. This matter is DISMISSED. This

denial of authorization is not appealable and “shall not be the subject of a petition

for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E).

Entered for the Court,

ELISABETH A. SHUMAKER, Clerk

Appellate Case: 09-3342 Document: 01018340811 Date Filed: 01/04/2010 Page: 4