                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 05-35009
                Plaintiff-Appellee,          D.C. Nos.
               v.                        CV-03-00111-JKS
CYRUS D.A. BRASWELL,                      CR-97-00068-JKS
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
                for the District of Alaska
    James K. Singleton, Chief District Judge, Presiding

                 Argued and Submitted
           March 5, 2007—Seattle, Washington

                 Filed September 4, 2007

Before: Diarmuid F. O’Scannlain, A. Wallace Tashima, and
            Marsha S. Berzon, Circuit Judges.

              Opinion by Judge O’Scannlain




                           11397
11398           UNITED STATES v. BRASWELL


                       COUNSEL

Darla J. Mondou, Marana, Arizona, argued the cause and was
on the brief for the defendant-appellant.
                  UNITED STATES v. BRASWELL               11399
Richard L. Pomeroy, Assistant United States Attorney, Dis-
trict of Alaska, Anchorage, Alaska, argued the cause and was
on the briefs for the plaintiff-appellee; Nelson P. Cohen,
United States Attorney, District of Alaska, Anchorage,
Alaska, and Timothy M. Burgess, United States Attorney,
District of Alaska, Anchorage, Alaska, were also on the
briefs.


                          OPINION

O’SCANNLAIN, Circuit Judge:

   We must decide whether a habeas petitioner’s argument
that his indictment was constitutionally defective is procedur-
ally barred because of his failure to raise it on direct appeal.

                               I

   On July 15, 1997, Cyrus Braswell was indicted by a grand
jury in Anchorage, Alaska on four counts of distribution of a
Schedule II controlled substance, in violation of 21 U.S.C.
§ 841(a)(1); one count of possession of a Schedule II con-
trolled substance with intent to distribute, in violation of the
same provision; two counts of maintaining a place for drug
trafficking, in violation of 21 U.S.C. § 856(a)(1); and two
counts of money laundering, in violation of 18 U.S.C. § 1957.
After trial, a jury convicted Braswell on eight of the nine
counts. He was sentenced to 400 months of imprisonment and
a fine of $98,677.

   Braswell appealed his conviction and the judgment and we
affirmed in an unpublished memorandum disposition. United
States v. Braswell, No. 98-30198, 2000 WL 335570 (9th Cir.
March 30, 2000) (mem.). After the appeal was final, Braswell
filed various motions with the district court—for a new trial,
for acquittal, for change of venue or recusal, for return of
11400             UNITED STATES v. BRASWELL
property—and the district court denied each of them; we
affirmed. United States v. Braswell, 51 F. App’x 783 (9th Cir.
2002) (mem.).

   Thereafter, Braswell filed a petition for habeas relief under
28 U.S.C. § 2255. Braswell’s pro se petition alleged four
grounds for relief, none of which is at issue here. After the
magistrate judge issued his Report and Recommendation,
however, Braswell filed one objection, raising the claim that
his original indictment did not identify the drugs as cocaine
and marijuana whereas the jury instructions in his trial did.
The government argued that this claim was procedurally
barred. The magistrate judge, construing the pro se brief liber-
ally and considering the claim as one for ineffective assis-
tance of counsel, rejected the claim, ruling that the indictment
was sufficient and that therefore counsel had not been “inef-
fective” in failing to challenge it. The district court agreed
with the Final Report and Recommendation, adding its own
conclusion that no jurist of reason would find it debatable
whether Braswell was denied effective assistance of counsel,
and that Braswell’s allegations against his attorneys were
“frivolous and his pleadings an abuse of the writ.” The district
court dismissed the petition with prejudice and declined to
issue a Certificate of Appealability (“COA”).

   On appeal, a motions panel granted a COA on the sole
issue of whether Braswell’s constitutional rights had been vio-
lated by the indictment’s failure to allege the kind of drug
involved in Braswell’s offense.

                               II

  The government argues that our consideration of the ade-
quacy of Braswell’s indictment is procedurally barred.
                      UNITED STATES v. BRASWELL                        11401
                                      A

   [1] “Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be raised
in habeas only if the defendant can first demonstrate either
‘cause’ and actual ‘prejudice’ or that he is ‘actually innocent.’ ”1
Bousley v. United States, 523 U.S. 614, 622 (1998) (citations
omitted); United States v. Johnson, 988 F.2d 941, 945 (1993).
The Supreme Court in Bousley applied the procedural bar in
the context of § 2255 habeas proceedings, reaffirming that
both for federal and state convictions, habeas review is not to
substitute for an appeal.2 Id. at 621.
  1
    But see English v. United States, 42 F.3d 473, 477 (9th Cir. 1994)
(“Unless the defendant has violated some rule which required him to raise
a claim or forfeit it, there is no procedural default, and the cause and preju-
dice standard does not apply.”). English was in fact careful to limit its
holding to the state of the law in 1989, which was relevant because of the
procedural posture of that case; as English itself noted, by 1994 the law
might well have moved beyond the “rule violation” requirement it recog-
nized. Id. at 481. Nevertheless, some of our unpublished dispositions have
continued to cite English when considering the procedural bar. We recog-
nize that Bousley (and our Johnson case before it) reflect the current state
of the law: most claims are procedurally defaulted by both federal and
state prisoners in habeas proceedings when not raised on direct appeal,
absent a showing of cause and prejudice or actual innocence.
   Of course, as Bousley recognized, the cause and prejudice requirement
does not apply to claims that “could not be presented without further fac-
tual development.” Bousley, 523 U.S. at 621-22 (citing Waley v. Johnson,
316 U.S. 101 (1942) (per curiam)). Similar reasoning led the Supreme
Court recently to exclude all ineffective assistance of counsel claims from
the cause and prejudice requirement. Massaro v. United States, 538 U.S.
500, 505 (2003). Braswell’s claim, however, does not fall into either cate-
gory, as the record was fully developed on direct appeal and the claim is
not one for ineffective assistance of counsel. Nor has Braswell suggested
that there is any other applicable exception to the cause and prejudice
requirement.
   2
     Indeed, in Reed v. Farley, 512 U.S. 339 (1994), relied upon in Bousley,
the Court had clarified that the general principle of applying the proce-
dural bar in federal habeas cases applied in habeas review of state convic-
tions as well. Reed, 512 U.S. at 354.
11402             UNITED STATES v. BRASWELL
   The “cause and prejudice” test for excusing the failure to
raise a claim on direct appeal will apply, for example, where
the claim rests upon a new legal or factual basis that was
unavailable at the time of direct appeal, or where “interfer-
ence by officials” may have prevented the claim from being
brought earlier. Murray v. Carrier, 477 U.S. 478, 488 (1986).
If a petitioner succeeds in showing cause, the prejudice prong
of the test requires demonstrating “not merely that the errors
at . . . trial created a possibility of prejudice, but that they
worked to his actual and substantial disadvantage, infecting
his entire trial with error of constitutional dimensions.”
United States v. Frady, 456 U.S 152, 170 (1982).

   Finally, a petitioner who fails to show either cause or preju-
dice can still obtain review of a claim on collateral attack by
demonstrating the likelihood of his or her actual innocence.
Bousley, 523 U.S. at 623.

                               B

   [2] Here, Braswell cannot claim novelty or interference for
his failure to raise the adequacy of his indictment on direct
appeal; indeed, during its pendency he attempted to raise the
claim in a post-trial motion that his trial court rejected as
untimely, which decision we affirmed. Braswell, 51 F. App’x
at 784. Nor has Braswell shown any other cause for his failure
to raise the issue on appeal.

   [3] Furthermore, even if Braswell could somehow demon-
strate cause, he has at no point argued, let alone demonstrated,
that any defect in his indictment worked to his actual disad-
vantage at trial in any way, such as by making it difficult to
prepare a defense for the charges against him. Cf. Hamling v.
United States, 418 U.S. 87, 117 (1974). Thus, nothing in
Braswell’s arguments before the district court or this court
approaches the necessary showing of prejudice to overcome
the procedural bar.
                      UNITED STATES v. BRASWELL                      11403
   [4] Finally, we note that Braswell has not argued “actual
innocence,” and that both the district court in habeas review,
and our court on direct appeal, have concluded that the evi-
dence of his guilt at trial was “overwhelming.” Braswell, 51
F. App’x at 784. Therefore, the actual innocence exception to
the procedural bar cannot apply to Braswell’s claim.

                                    III

   [5] For the foregoing reasons, we conclude that Braswell’s
claim that his indictment was constitutionally deficient is pro-
cedurally barred.3

   AFFIRMED.




  3
    Braswell’s “Motion for Leave to Clarify the Issue Granted a COA and
for Leave to Brief the Clarified Issue,” filed after oral argument, is denied
as moot.
