USA v. Russell Pryor
REVISED UNPUBLISHED OPINION FILED. [8642582-2] [15-20470]
Date Filed: 11/21/2017
REVISED November 21, 2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
November 20, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
Plaintiff - Appellee
RUSSELL RAY PRYOR,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-267
Before BARKSDALE, PRADO, and OWEN, Circuit Judges.
PER CURIAM: *
Russell Ray Pryor, federal prisoner #38706-179, and proceeding pro se
on appeal, was sentenced to 360 months’ imprisonment for possessing a
firearm after being adjudged guilty of a felony, and possessing a firearm to
further a drug-trafficking crime, in violation of 18 U.S.C. §§ 922(g)(1),
924(e)(1), and 924(c)(1)(A), and possessing with intent to distribute
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
Date Filed: 11/21/2017
dihydrocodeinone, and possessing with intent to distribute codeine, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 841(b)(3). Following being denied
28 U.S.C. § 2255 relief, Pryor was denied a certificate of appealability (COA).
After additional litigation contesting the final judgment, Pryor moved
under Federal Rule of Civil Procedure 60(b)(4) and (6) for relief from the
judgment denying § 2255 relief. The district court denied Pryor’s motion.
Our court granted Pryor a COA on one issue: whether the district court
abused its discretion in denying Rule 60(b) relief from the denial of his § 2255
motion, by refusing to consider pages missing from his affidavit in opposition
to counsel’s affidavit, and not holding an evidentiary hearing on his claim
counsel rendered ineffective assistance regarding the voluntariness of consent
to a premises search that resulted in the introduction of evidence seized in that
Pryor’s opening brief, which only twice mentions Rule 60(b), does not
address the issue allowed by his COA. As in this instance, it is insufficient to
allude to a legal theory. McIntosh v. Partridge, 540 F.3d 315, 325 n.12 (5th
Cir. 2008). And, because Pryor does not address the issue on which the COA
was granted, the issue is abandoned. E.g., Davis v. Maggio, 706 F.2d 568, 571
(5th Cir. 1983); Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994); Yohey v.
Collins, 985 F.2d 222, 224–225 (5th Cir. 1993).
Pryor asserts his innocence and contends his convictions were
constitutionally invalid as a result of, inter alia, ineffective assistance of
counsel. But our jurisdiction does not extend to those issues; it is restricted to
the above-described issue on which Pryor was granted a COA. 28 U.S.C.
§ 2253(c); Carty v. Thaler, 583 F.3d 244, 266 (5th Cir. 2009); United States v.
White, 307 F.3d 336, 339 n.1 (5th Cir. 2002).
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