United States of America, Plaintiff-appellee, v. Frank A. Sanfilippo, Defendant-appellant, 979 F.2d 858 (10th Cir. 1992)

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US Court of Appeals for the Tenth Circuit - 979 F.2d 858 (10th Cir. 1992) Nov. 6, 1992

Before JOHN P. MOORE and TACHA, Circuit Judges, and SAFFELS,*  Senior District Judge.


TACHA, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Defendant, appearing pro se, appeals from the district court's denial of his motion pursuant to 28 U.S.C. § 2255 to set aside the sentence imposed after his March 4, 1989, conviction on two counts of possession of a firearm in violation of 18 U.S.C. § 922(g) (1). We affirm.

18 U.S.C. § 922(g) (1) forbids the possession of firearms by persons who have been convicted of a crime punishable by more than one year imprisonment whose civil rights have not been restored. Defendant argues that his previous Colorado, New Mexico, and Oregon convictions cannot be used as predicate offenses to support a conviction under § 922(g) (1) because his civil rights have since been restored by his state of residence, Colorado. The government argues, on the other hand, both that defendant has not and cannot show that his civil rights have been restored under the law of Colorado and that, having failed to raise this argument on direct appeal, defendant may not raise it on a § 2255 motion. We agree with the government in this case.

Defendant previously appealed his conviction to this court, which affirmed in an unpublished opinion, see United States v. San Filippo, No. 89-1367, slip op. (10th Cir. Sept. 12, 1990), cert. denied, 111 S. Ct. 1079 (1991). Defendant, who was represented by counsel on appeal, had the opportunity to raise the argument he now raises on his § 2255 motion, but he did not. This allegation of error therefore cannot be raised by collateral attack unless good cause is shown. United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Khan, 835 F.2d 749, 753-54 (10th Cir. 1987), cert. denied, 487 U.S. 1222 (1988). Defendant has "failed to establish, or even allege, good cause for his failure" to raise this argument on his previous appeal, Khan, 835 F.2d at 754, and therefore this court will not review it.

Defendant's motion to reconsider appointment of counsel is DENIED. The judgment of the United States District Court for the District of Colorado is AFFIRMED.

The mandate shall issue forthwith.


Honorable Dale E. Saffels, Senior District Judge, United States District Court for the District of Kansas, sitting by designation


This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3