Escolar Documentos
Profissional Documentos
Cultura Documentos
2d 1225
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
(D) If the comments of the defendant and the defendant's counsel or testimony
or other information introduced by them allege any factual inaccuracy in the
presentence investigation report ... the court shall, as to each matter
controverted, make (i) a finding as to the allegation, or (ii) a determination that
no such finding is necessary because the matter controverted will not be taken
into account in sentencing. A written record of such findings and
determinations shall be appended to and accompany any copy of the
presentence investigation report thereafter made available to the Bureau of
Prisons.
Our review of the record reveals, however, that Tranakos did not raise this issue
on direct appeal. "[T]he failure by a defendant to raise a nonconstitutional issue
on direct appeal when he was able to do so ordinarily will bar collateral review
of that issue under Section 2255." United States v. Gattas, 862 F.2d 1432, 1435
(10th Cir.1988). Tranakos may overcome this bar only if he can show cause for
the procedural default and actual prejudice resulting from the alleged
sentencing error. United States v. Frady, 456 U.S. 152, 167-68 (1982); see also
United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987) ("[Section] 2255 is
not available to test the legality of matters which should have been raised on
appeal."), cert. denied, 487 U.S. 1222 (1988).
9
10
Tranakos has not even attempted to show cause for his default or actual
prejudice. See Khan, 835 F.2d at 754. Consequently, he is barred from raising
this issue in a 2255 motion. The judgment of the United States District Court
for the District of Wyoming is AFFIRMED.
Honorable Dale E. Saffels, Senior District Judge, United States District Court
for the District of Kansas, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3