
USCA1 Opinion

	




          December 26, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1188                                    UNITED STATES,                                      Appellee,                                          v.                                  JOSE REYES MUNOZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Carmen Consuelo Cerezo, U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________            Jose A. Reyes Munoz on brief pro se.            ___________________            Guillermo  Gil,  United   States  Attorney,  Miguel  A.   Pereira,            ______________                               ____________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.   We affirm  the district  court's order  of                 __________            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).            ___ _____    _____                 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.                                       _____________     _____            152,  165 (1982); see also  Knight v. United  States, 37 F.3d                              ________  ______    ______________            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                            _______     _____________            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                                                                ___ _____            v. Dubois, 55 F.3d 712, 717 (1st Cir. 1995).               ______                                         -2-                 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                                         -3-            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                                          _________     _____________            F.3d  233, 240  (1st  Cir.), cert.  denied,  115 S.  Ct.  517                                         _____________            (1994).                                         -4-                 The order of the district court is affirmed.                                                    _________                                         -5-
