USCA1 Opinion
December 26, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1188
UNITED STATES,
Appellee,
v.
JOSE REYES MUNOZ,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
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Before
Selya, Cyr and Boudin,
Circuit Judges.
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Jose A. Reyes Munoz on brief pro se.
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Guillermo Gil, United States Attorney, Miguel A. Pereira,
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Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior
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Litigation Counsel, on brief for appellee.
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Per Curiam. We affirm the district court's order of
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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).
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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.
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152, 165 (1982); see also Knight v. United States, 37 F.3d
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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
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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
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v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995).
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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
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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
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F.3d 233, 240 (1st Cir.), cert. denied, 115 S. Ct. 517
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(1994).
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The order of the district court is affirmed.
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