United States v. Diminico ( 1996 )

USCA1 Opinion

        February 13, 1996       [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



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        No. 95-1756



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 JEFFREY A. DIMINICO,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. William G. Young, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Jeffrey A. Diminico on brief pro se.
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            Donald  K.  Stern,  United  States  Attorney,  Mark  D.   Seltzer,
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        Director,  New England Bank Fraud  Task Force, Fraud Section, Criminal

        Division, U.S. Department of  Justice, Anita S. Lichtblau and  Paul M.
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        Glickman,  Trial Attorneys, New  England Bank Fraud  Task Force, Fraud
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        Section, Criminal  Division, U.S. Department of Justice,  on brief for

        appellee.





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                      Per  Curiam.    Jeffrey  A.  Diminico  appeals  the
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            district  court's denial of his 28 U.S.C.   2255 motion.  The



            sole  argument made in this motion is that the district court



            improperly  delegated to  the United States  Probation Office



            the  task of  setting  a payment  schedule for  restitution.1
1



            Diminico did not raise  this issue at sentencing, and  he did



            not pursue a direct appeal.   A   2255 motion cannot serve as



            a substitute for  appeal.   See United States  v. Frady,  456
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            U.S. 152, 165  (1982).  Having failed  to raise his claim  of



            unauthorized  delegation  of  judicial  authority  on  direct



            appeal, Diminico cannot raise  it on collateral attack absent



            a showing of cause for the failure and actual prejudice.  See
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            Coleman v.  Thompson, 501  U.S. 722,  750  (1991); Knight  v.
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            United  States, 37 F.3d 769,  773-74 (1st Cir.  1994).  Since
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            Diminico  has  not  even  attempted to  meet  the  cause-and-



            prejudice requirement,  we affirm  the denial  of his    2255



            motion.



                      Affirmed.
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               1On appeal,  Diminico raises additional challenges  to the
1

            district court's restitution order.   Since these issues were

            not presented in his   2255 motion, we deem them waived.  See
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            Singleton  v. United  States, 26  F.3d 233,  240 (1st  Cir.),
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            cert. denied, 115 S. Ct. 51 (1994).
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