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USCA1 Opinion

December 26, 1995


[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT

____________________

No. 95-1188

UNITED STATES,

Appellee,

v.

JOSE REYES MUNOZ,

Defendant, Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]


___________________

____________________

Before

Selya, Cyr and Boudin,


Circuit Judges.
______________

____________________

Jose A. Reyes Munoz on brief pro se.


___________________
Guillermo Gil,
______________

United

States

Assistant United States Attorney,

Attorney,

Miguel A.
Perei
__________________

and Jose A. Quiles-Espinosa, Sen


_______________________

Litigation Counsel, on brief for appellee.

____________________

____________________

Per Curiam.
__________

We affirm

the district

court's order

December 21, 1994, denying appellant's motion

to 28 U.S.C.

2255.

Appellant has

filed pursuant

failed to

demonstrate

cause for failing to pursue his timely filed direct

appeal, which was

dismissed for lack of

we conclude

that appellant

default, we

need not address whether

criminal

prosecution.

lacked cause for

of

Since

his procedural

he suffered prejudice.

See Engle v. Isaac, 456 U.S. 107, 134 n.43 (1982).


___ _____
_____

Appellant's

cause

contention

that

and prejudice for his

he need

not

demonstrate

default is erroneous

as it has

long been established that "a collateral challenge may not do

service for an

152,

appeal."

United States v.
_____________

165 (1982); see also


________

Frady, 456
_____

U.S.

Knight v. United States, 37 F.3d


______
______________

769, 772-74 (1st Cir. 1994) (applying the cause and prejudice

standard to collateral claims of

from ineffective

assistance of counsel claim,

direct review); Suveges v.


_______

Cir.

1993)

collateral

direct

(applying

claim of

and

prejudice

jurisdictional error

to the

not raised on

United States, 7 F.3d 6,


_____________

cause

appeal was taken).

narrow exception

constitutional error, apart

10 (1st

standard

in case

to

where no

Nor has appellant come within the

cause and prejudice

requirement by

proffering a

tied

claim of

a fundamental miscarriage

to a colorable showing of factual innocence.

v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995).


______

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of justice

See Burks
___ _____

Appellant's claim

due

to his

lack of

prison system

filings

in this

let his direct

resources and

is belied by the

First, he

Ten days later,

appeal lapse

his movement

evidence.

within the

In his

series of

us of

his ever-

court, appellant informed

changing desires.

pro se.

that he

expressed his intent to proceed

he moved for appointed counsel.

We

informed him of the

need to file,

in the district court,

financial affidavit

and

for leave

to proceed

in

Rather than

file for

IFP

forma pauperis (IFP)

a motion

on appeal.

status in the district court, appellant next informed us that

he

wanted

to

withdraw

thereafter, appellant

appeal and

his appeal

voluntarily.

stated that he wanted

again requested

Shortly

to continue his

appointed counsel.

We reminded

appellant that, in order for us to appoint counsel, he needed

to

file

his

IFP

district

court.

court, he

was

He

and

financial

never did.

exhorting that

conviction motions

the

motion

affidavit in

Rather, in

court

the

the district

to decide

some

post-

he had filed there because if he obtained

requested relief, he would not need to pursue his direct

appeal.

District Court docket #187a.

Appellant was aware of what he had to do in order to get

appointed

counsel, but never did it.

that he could proceed pro

his direct appeal was

what he

wanted

to

Moreover, he also knew

se, if he chose.

The

marked by his own inability

do: proceed

-3-

pro

se,

obtain

pendency of

to decide

appointed

counsel, or withdraw his

appeal.

All of these

options were

first proffered as his choice, then aborted by his own action

or inaction.

His final choice

was to do nothing and let the

appeal be dismissed for lack of prosecution.

Nor

within

was

his procedural

the prison system.

ability to

correspond with

default

due

His movement did

this court

to his

movement

not impair his

(or for that

matter

with

the district

that

his

mail

court).

from this

requested an enlargement

issues and/or his

court

of time

brief, he

direct appeal was pending,

and

requests in

seeking

sentencing

be

the

credited

had

been

to file

received one.

the district

that

appellant complained

delayed and

he

his statement

of

And, while

his

appellant filed numerous

reconsideration of

motion asking

Each time

court, including

his sentence

time

he spent

towards

his

and an

on

motions

six motions

additional

release

incarceration

Clearly, appellant's procedural default of his direct

before

time.

appeal

was a conscious choice that was not due either to his lack of

resources or his movement among prisons.

On appeal, appellant raises,

for the first time, claims

of ineffective assistance of counsel.

A claim neither raised

in the

not

F.3d

2255 motion nor

be reviewed on appeal.

233, 240

(1st

argued in the district

Singleton v.
_________

Cir.), cert. denied,


_____________

(1994).

-4-

court will

United States, 26
_____________

115 S.

Ct.

517

The order of the district court is affirmed.


_________

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