James Chapman, Petitioner-appellant, v. United States of America, Respondent-appellee, 985 F.2d 559 (6th Cir. 1993)

ORDER

James Chapman, a pro se federal prisoner, appeals from the dismissal of his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. This 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).

The district court dismissed Chapman's motion as an abuse of the writ pursuant to McCleskey v. Zant, 111 S. Ct. 1454 (1991). See also Rule 9(b), Rules Governing Section 2255 Cases. We affirm the judgment of the district court, but for reasons other than those stated by the district court. See Foster v. Kassulke, 898 F.2d 1144, 1146 (6th Cir. 1990).

The district court determined Chapman had failed to establish cause under the cause and prejudice analysis. Specifically, the district court found that Chapman had not made a sufficient showing that the factual basis for his claim was not reasonably available at the time of his first motion to vacate. The district court did not determine whether the legal basis for Chapman's claims was reasonably available.

Even assuming that Chapman has established cause, he must also demonstrate actual prejudice flowing from the alleged errors. See McClesky, 111 S. Ct. at 1470. We have reviewed Chapman's motion and brief, particularly the issues that relate to sentencing, and find that Chapman has not established actual prejudice.

Accordingly, we affirm the judgment of the district court. Rule 9(b) (3), Rules of the Sixth Circuit.