David v. United States ( 1994 )

USCA1 Opinion

          March 31, 1994        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
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        No. 93-1701 

                                   GEORGE W. DAVID,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                Respondent, Appellee.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Frank H. Freedman, Senior 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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            George W. David on brief pro se.
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            A. John  Pappalardo, United  States Attorney, and  John P.  Pucci,
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        Assistant United States Attorney, on brief for appellee.


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                      Per Curiam.  Appellant George W. David appeals from
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            the dismissal of his motion filed under 28 U.S.C.   2255.  In

            this motion, appellant argues that  a portion of his sentence

            should  be vacated.  However, appellant did not object to the

            sentence at  the time  it was  imposed nor  did  he pursue  a

            direct appeal.

                      Where a  criminal defendant  does not  object below

            and does not appeal  his sentence, he is barred  form raising

            his  challenge to the  sentence in a    2255 motion unless he

            can  establish  cause and  prejudice  as  required by  United
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            States v. Frady, 456 U.S. 152, 167-68 (1982).  See Suveges v.
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            United States,  7 F.3d 6,  10 (1st Cir.  1993) (failure  of  
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            2255 movant to object at trial to enhanced term of supervised

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

            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,  898-99 (8th  Cir. 1993)  (per
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            curiam)  (defendant was procedurally barred, absent a showing

            of cause and prejudice, from raising sentencing issues in a  

            2255  motion which he had failed to pursue on direct appeal).

            Appellant,  having  failed  to  show cause,  is  barred  from

            raising the issue now.

                      In any event, we have carefully reviewed the record

            and the briefs of the parties  and find no plain error in the

            district court's decision.   We therefore affirm the judgment
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            of the district court.



















































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