United States v. Reyes Munoz ( 1995 )

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                                [NOT FOR PUBLICATION]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  Attorney,  Miguel  A.   Pereira,
______________                               ____________________

        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior
_______________________

        Litigation Counsel, on brief for appellee.





                                 ____________________





                                 ____________________





































































































































































                 Per Curiam.   We affirm  the district  court's order  of
__________



            December 21, 1994, denying appellant's motion  filed pursuant



            to 28 U.S.C.    2255.   Appellant has  failed to  demonstrate



            cause for failing to pursue his timely filed direct  criminal



            appeal, which was  dismissed for lack of  prosecution.  Since



            we conclude  that appellant  lacked cause for  his procedural



            default, we  need not address whether  he suffered prejudice.



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



                 Appellant's  contention  that  he need  not  demonstrate



            cause  and prejudice for his  default is erroneous  as it has



            long been established that "a collateral challenge may not do



            service for an  appeal."   United States v.  Frady, 456  U.S.
_____________     _____



            152,  165 (1982); see also  Knight v. United  States, 37 F.3d
________  ______    ______________



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



            standard to collateral claims of  constitutional error, apart



            from ineffective  assistance of counsel claim,  not raised on



            direct review); Suveges v.  United States, 7 F.3d 6,  10 (1st
_______     _____________



            Cir.  1993)  (applying   cause  and  prejudice   standard  to



            collateral  claim of  jurisdictional error  in case  where no



            direct  appeal was taken).  Nor has appellant come within the



            narrow exception  to the  cause and prejudice  requirement by



            proffering a  claim of  a fundamental miscarriage  of justice



            tied  to a colorable showing of factual innocence.  See Burks
___ _____



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











                                         -2-



























                 Appellant's claim  that he  let his direct  appeal lapse



            due  to his  lack of  resources and  his movement  within the



            prison system  is belied by the  evidence.  In his  series of



            filings  in this  court, appellant informed  us of  his ever-



            changing desires.  First, he  expressed his intent to proceed



            pro se.  Ten days later,  he moved for appointed counsel.  We



            informed him of the  need to file,  in the district court,  a



            financial affidavit  and  a motion  for leave  to proceed  in



            forma pauperis (IFP)  on appeal.   Rather than  file for  IFP



            status in the district court, appellant next informed us that



            he  wanted  to  withdraw  his appeal  voluntarily.    Shortly



            thereafter, appellant  stated that he wanted  to continue his



            appeal and  again requested  appointed counsel.   We reminded



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



            to  file  his  IFP  motion  and  financial  affidavit in  the



            district  court.   He  never did.    Rather, in  the district



            court, he  was  exhorting that  court  to decide  some  post-



            conviction motions  he had filed there because if he obtained



            the  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.  Moreover, he also knew



            that he could proceed pro  se, if he chose.  The  pendency of



            his direct appeal was  marked by his own inability  to decide



            what he  wanted  to  do: proceed  pro  se,  obtain  appointed







                                         -3-



























            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  was  his procedural  default  due  to his  movement



            within  the prison system.   His movement did  not impair his



            ability to  correspond with  this court  (or for that  matter



            with  the district  court).   Each time  appellant complained



            that  his  mail  from this  court  had  been  delayed and  he



            requested an enlargement  of time  to file  his statement  of



            issues and/or his  brief, he  received one.   And, while  his



            direct appeal was pending,  appellant filed numerous  motions



            and  requests in  the district  court, including  six motions



            seeking  reconsideration of  his sentence  and an  additional



            motion asking  that  the  time  he spent  on  release  before



            sentencing   be  credited  towards  his  incarceration  time.



            Clearly, appellant's procedural default of his direct  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    2255 motion nor  argued in the district  court will



            not  be reviewed on appeal.   Singleton v.  United States, 26
_________     _____________



            F.3d  233, 240  (1st  Cir.), cert.  denied,  115 S.  Ct.  517
_____________



            (1994).







                                         -4-



























                 The order of the district court is affirmed.
_________







































































































                                         -5-