United States of America, Plaintiff-appellee, v. William E. Horton, Defendant-appellant, 36 F.3d 1106 (10th Cir. 1994)

Mr. Horton appeals from the denial of his second 28 U.S.C. 2255 motion to vacate, set aside, or correct sentence. The district court dismissed this second motion as successive. Our jurisdiction arises under 28 U.S.C. 2253 and we affirm.

We have reviewed the claims asserted in Mr. Horton's first and second petitions, and conclude that they are sufficiently similar to bar review of the second petition. See Sanders v. United States, 373 U.S. 1, 15 (1963). We agree with the district court that Mr. Horton has not demonstrated cause and prejudice, or fundamental miscarriage of justice. McCleskey v. Zant, 111 S. Ct. 1454, 1470-71 (1991).

Moreover, Mr. Horton failed to appeal from the denial of his first 2255 motion. Although we recognize that res judicata does not apply in the present context, McCleskey, 111 S. Ct. at 1462-63, a second 2255 petition may not be used in an effort to revisit the decision not to appeal the denial of the first motion. United States v. Kress, 944 F.2d 155, 162 (3rd Cir. 1991); United States v. Leiby, 820 F.2d 70, 74 (3rd Cir. 1987). We affirm on the grounds that the pleadings at issue are successive and constitute an abuse of the 2255 remedy. See Rule 9(b), Rules Governing Proceedings in the United States District Courts Under 28 U.S.C. 2255; McCleskey, 111 S. Ct. at 1470-71.

AFFIRMED. The mandate shall issue forthwith.