Joe Ray Littleton, Petitioner-appellant, v. United States of America, Respondent-appellee, 23 F.3d 407 (6th Cir. 1994)

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US Court of Appeals for the Sixth Circuit - 23 F.3d 407 (6th Cir. 1994) April 25, 1994

Before: BOGGS and SILER, Circuit Judges, and HOLSCHUH, Chief District Judge.* 

ORDER

Joe Ray Littleton appeals a district court judgment denying his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In 1992, Littleton pleaded guilty to being a felon in possession of a firearm and the district court sentenced him to thirty months of imprisonment. He did not file a direct appeal. Littleton subsequently filed his motion to vacate, alleging that the district court improperly convicted him because his civil rights were never revoked under Tennessee law. Littleton also alleged ineffective assistance of counsel. The district court determined that Littleton's claims were without merit and denied the motion. Littleton has filed a timely appeal. On appeal, Littleton requests permission to proceed in forma pauperis and also requests a free transcript.

Upon review, we conclude that the district court properly denied Littleton's motion to vacate. Littleton has waived review of his claims, because he has not shown cause and prejudice to excuse his failure to raise the claims in a direct appeal. See United States v. Frady, 456 U.S. 152, 167-69 (1982); Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir. 1993). In any event, Littleton's civil rights were clearly revoked under state law and have not been restored. See Tenn.Code Ann. Secs. 40-20-112, 40-20-114, 40-29-101 and 40-29-102; United States v. Driscoll, 970 F.2d 1472, 1475-81 (6th Cir. 1992), cert. denied, 113 S. Ct. 1056 (1993). Further, Littleton was not prejudiced by any failure of his counsel to raise this issue. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, we grant Littleton permission to proceed in forma pauperis, deny his request for a transcript, and affirm the district court's judgment. Rule 9(b) (3), Rules of the Sixth Circuit.

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The Honorable John D. Holschuh, Chief U.S. District Judge for the Southern District of Ohio, sitting by designation