Akitoye v. United States ( 1993 )

USCA1 Opinion

          December 27, 1993
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                           


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        No. 93-1217 

                                 ADEGBOYEGA AKITOYE,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND


                     [Hon. Ernest C. Torres, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                         Torruella and Selya, Circuit Judges.
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            Adegboyega Akitoye on brief pro se.
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            Edwin J.  Gale, United  States Attorney,  Margaret  E. Curran  and
            ______________                            ___________________
        James  H. Leavey,  Assistant  United States  Attorneys,  on brief  for
        ________________
        appellee.


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                      Per  Curiam.    Appellant  Adegboyega  Akitoye  was
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            convicted of conspiracy to distribute and possession with the

            intent to  distribute heroin.  We affirmed  his conviction on

            direct appeal.   See United  States v. Akitoye, 923  F.2d 221
                             ___ ______________    _______

            (1st Cir. 1991).   He then filed  a motion under 28  U.S.C.  

            2255 to vacate his sentence.  In the motion, appellant raised

            two related grounds:  (1)  his conviction for conspiracy  was

            obtained by the use of evidence  not relevant to him; and (2)

            there  was insufficient evidence to support his conviction of

            possession  with the intent to distribute heroin.  On appeal,

            appellant argues that  the evidence was not  sufficient as to

            the existence of  a conspiracy and  that his lawyer  provided

            ineffective assistance by failing to raise the sufficiency of

            the evidence claim on direct appeal.1

                      Issues  not pursued on direct appeal are subject to

            the  cause  and  prejudice standard  under  United  States v.
                                                        ______________

            Frady, 456  U.S. 152, 167-68  (1982).  See Suveges  v. United
            _____                                  ___ _______     ______

            States,  7 F.3d  6, 10  (1st Cir.  1993)  (failure of    2255
            ______

            movant  to object  at trial  to  enhanced term  of supervised

            release  and  to  appeal sentence  "in  the  first instance,"



                                
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            1.  Appellant also  raises an argument  concerning the  trial
            court's denial of the jury's request to have the testimony of
            three witnesses  read to it.   However,  appellant failed  to
            present this  ground when he  brought his   2255  petition in
            the district court.   "[A]n issue not presented  to the trial
            court  cannot  be  raised  for the  first  time  on  appeal."
            Nogueira v. United States, 683 F.2d 576, 580 (1st Cir. 1982).
            ________    _____________
            In all events,  this ground has  already been considered  and
            rejected on direct appeal.  See Akitoye, 923 F.2d at 225-27.
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            constituted  procedural default;  movant therefore  must show

            cause and  prejudice to  obtain collateral  relief); Ford  v.
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            United States, 983 F.2d 897, 898 (8th Cir. 1993) (per curiam)
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            (defendant was procedurally barred, absent a showing of cause

            and prejudice, from  raising issues in a    2255 motion which

            he had failed  to pursue on direct appeal).   Thus, appellant

            is barred from  raising the claim concerning  the sufficiency

            of the evidence  unless he can show cause and  prejudice.  He

            cannot  establish `cause' here, except, perhaps, by resort to

            the  principle that cause  can be established  by ineffective

            assistance of counsel.  Suveges, 7 F.3d at 10; Ford, 983 F.2d
                                    _______

            at 898-99.

                      To show ineffectiveness, appellant must demonstrate

            "that  counsel   fell  below  the  applicable   standard  for

            performance, defined by  what the lawyer knew, or should have

            known, at the time  of his/her tactical choices . . . ."  See
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            United States  v. Fisher,  3 F.3d 456,  463 (1st  Cir. 1993).
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            Here, what appellant's attorney knew at the time he filed the

            appeal was  that we had  upheld, on direct appeal,  the trial

            judge's  finding  that  appellant had  obstructed  justice by

            perjuring himself at  trial.  The  trial judge, in  enhancing

            appellant's  base offense  level,  had described  appellant's

            testimony as  a "self-serving `cock  and bull  story.'"   923

            F.2d at 228.  Indeed,  in referring to appellant's attempt to

            cast his co-conspirator  as the "villain" by  disclaiming any



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            knowledge   of  the  drugs  or  marked  money  found  in  his

            (appellant's)  apartment, we stated:   "Viewed as  a seamless

            web,  the  record  stalwartly  supports  the conclusion  that

            Akitoye fabricated a fairy tale in a lame effort to avoid the

            condign consequences  of his criminal  conduct."  Id  at 229.
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            Given  this scenario,  it  would  be  difficult  to  describe

            counsel's  decision not  to contest  the  sufficiency of  the

            evidence  as anything  other than  a  tactical decision  well

            within what constitutes "reasonable professional assistance."

            See Strickland v. Washington, 466 U.S. 668, 689 (1984).
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                      Nor  do we think that appellant has established the

            second prong of  Strickland -- that he was  prejudiced by the
                             __________

            failure  of his  attorney  to present  this  issue on  direct

            appeal.   See id.  at 687.   We  have carefully  reviewed the
                      ___ ___

            record and find  that there was sufficient evidence, beyond a

            reasonable  doubt,  to  support  the jury's  conclusion  that

            appellant  had engaged in  a conspiracy to  distribute heroin

            and possession with the intent  to distribute it.  See, e.g.,
                                                               ___  ____

            United States v. Lopez, 944 F.2d 33, 39-40 (1st Cir. 1991).
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                      For  the  foregoing  reasons, the  judgment  of the

            district court is affirmed.
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