971 F.2d 506 (10th Cir. 1992), 91-7014, Hines v. United States

Docket Nº:91-7014.
Citation:971 F.2d 506
Party Name:Carl Eugene HINES, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
Case Date:July 20, 1992
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 506

971 F.2d 506 (10th Cir. 1992)

Carl Eugene HINES, Plaintiff-Appellant,


UNITED STATES of America, Defendant-Appellee.

No. 91-7014.

United States Court of Appeals, Tenth Circuit

July 20, 1992

Page 507

Carl E. Hines, pro se (Michael G. Katz, Federal Public Defender, and Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo., on Supplemental Brief, for plaintiff-appellant).

John Raley, U.S. Atty., and Paul G. Hess, Asst. U.S. Atty., Muskogee, Okl., for defendant-appellee.

Before EBEL, Circuit Judge, BARRETT, Senior Circuit Judge, and PARKER, District Judge. [*]

EBEL, Circuit Judge.

This is an appeal from denial of a 28 U.S.C. § 2255 motion for collateral relief from a federal sentence. We hold that a court can address sua sponte a § 2255 movant's failure to raise the issue on direct appeal. Accordingly, we affirm.


The Appellant, Carl Eugene Hines, seeks relief from a federal sentence pursuant to § 2255. Hines was convicted and sentenced in federal court for offenses related to amphetamine and methamphetamine under 21 U.S.C. § 841(a)(1). 881 F.2d 844 (10th Cir.) In his § 2255 motion Hines argues that his conviction and sentence for the methamphetamine-related offenses are illegal because Congress directed the Attorney General to "exclude any non-narcotic substance from a schedule [of regulated drugs] if such substance may, under the Federal Food, Drug, and Cosmetic Act, be lawfully sold over the counter without a prescription." 21 U.S.C. § 811(g)(1). Because certain products that are lawfully sold over the counter without a prescription contain methamphetamine, Hines argues, methamphetamine cannot be scheduled, and his conviction and sentence are therefore invalid.

The magistrate did not address the merits of Hines' argument. Instead, he raised sua sponte Hines' failure to make this argument on direct appeal.

In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), a federal prisoner moved for relief under § 2255 on the ground that the jury that convicted him received an allegedly erroneous instruction. Id. at 157-58, 102 S.Ct. at 1589-90. However, the movant had failed to object to the instruction during trial or on direct appeal. The Supreme Court held that "to obtain collateral relief [under § 2255] based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his ... procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Id. at 167-68, 102 S.Ct. at 1594. 1

In United States v. Khan, 835 F.2d 749 (10th Cir.1987), cert. denied, 487 U.S. 1222, 108 S.Ct. 2881, 101 L.Ed.2d 915 (1988), we held that the Frady cause and prejudice standard applies if a § 2255 movant has failed to raise an issue on direct appeal, regardless of whether the movant

Page 508

made a contemporaneous objection to the alleged error at trial. Id. at 753-54. For brevity, we will refer to this defense--i.e., that the issue now being asserted in a § 2255 motion was not raised on direct appeal--as...

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