
USCA1 Opinion

	




          June 17, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2011                                 RUBEN SANTANA-DIAZ,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Ruben Santana-Diaz on brief pro se.            __________________            Guillermo  Gil, Acting  United States  Attorney, John  C.  Keeney,            ______________                                   ________________        Acting Assistant Attorney General, Theresa M.B. Van Vliet,  Chief, and                                           ______________________        Lena Watkins, Attorney, Criminal Division, Narcotic and Dangerous Drug        ____________        Section, U.S. Department of Justice, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.   Ruben  Santana Diaz appeals  from the                      __________            district court's dismissal of his petition  under 28 U.S.C.              2255.  We affirm for the reasons given briefly below.                      1.   Santana did not raise his claim that the trial            court's failure  to order  identification or production  of a            confidential informant  prejudiced his  ability to assert  an            entrapment  defense in his direct appeal.   See United States                                                        ___ _____________            v. Panet-Collazo, 960 F.2d 256, 259 (1st Cir.), cert. denied,               _____________                                ____________            506 U.S. 876 (1992).  Failure to raise a constitutional claim            on  direct  appeal  ordinarily  bars  raising  the  issue  on            collateral attack  unless the  petitioner can show  cause for            the failure and actual prejudice from the alleged trial court            error.   See Knight v.  United States, 37 F.3d  769, 774 (1st                     ___ ______     _____________            Cir. 1994).                        As  cause, Santana asserts  his appellate counsel's            ineffective assistance of counsel.   However, as the district            court  correctly  concluded  in  resolving  that  issue,  the            failure to  obtain the confidential  informant's testimony at            trial  did  not  prejudice  Santana's ability  to  assert  an            entrapment defense.   Even assuming that  the informant would            have  testified as  Santana suggests,  at most  his testimony            would  have established  only one  element of  the entrapment            defense -- that the government induced Santana to participate            in  the drug  deal  in question.    To assert  an  entrapment            defense, however, Santana also had to establish at trial that            he  was  not predisposed  to commit  his  crime.   See United                                                               ___ ______                                         -2-            States v. Panet-Collazo, 960 F.2d 256,  259 (1st Cir.), cert.            ______    _____________                                 _____            denied, 506 U.S. 876 (1992).    As we held on  direct appeal,            ______            he never did so.  Id. at 259-60.                                ___                      2.  Santana  bears the burden  of showing that  the            court vindictively sentenced him  for exercising his right to            a jury trial, as he claims.   United States v. Mena-Robles, 4                                          _____________    ___________            F.3d 1026, 1037  (1st Cir.  1993), cert. denied,  114 S.  Ct.                                               ____________            1550 (1994).   He  has not  pointed to  any statement by  the            district court or any other evidence suggesting that there is            a "reasonable likelihood" that he received a harsher sentence            than he otherwise  would have because he went to  trial so as            to trigger a  presumption of  vindictiveness.  See  id.   The                                                           ________            mere  fact  that  co-defendants, who  pled  guilty,  received            lesser sentences does  not show that it  is reasonably likely            that Santana  was vindictively sentenced.   Id.   Hence,  the                                                        ___            claim of vindictive sentencing fails.  Id.                                                     ___                      Affirmed.                      _________                                         -3-
