                      UNITED STATES COURT OF APPEALS
Filed 8/8/96
                                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,
                                                             No. 95-1544
               Plaintiff - Appellee,
          v.                                                 (D. Colorado)
 JAMES GRANDGEORGE,                                     (D.C. No. 95-Z-1660)

               Defendant - Appellant.


                              ORDER AND JUDGMENT*


Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34 (a); 10th Cir. R. 34.1.9. This cause is therefore ordered

submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       James Grandgeorge appeals the district court’s dismissal of his in forma pauperis

pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.

He contends that: 1) he received ineffective assistance of counsel; 2) the government

violated its obligation to disclose under Brady v. Maryland, 373 U.S. 83 (1963); 3) the

district court erred in calculating restitution and in considering his ability to pay; 4) the

district court erred in calculating loss; 5) the district court erred in failing to instruct the

jury on the materiality of the false statements charged under 18 U.S.C. § 1010; and 6) the

district court violated Fed. R. Crim. P. 32(c)(3)(A) and 32(c)(3)(D). We vacate and

remand.

       On December 31, 1991, Grandgeorge and a codefendant were convicted of mail

fraud, wire fraud, and making false statements in connection with a complex real estate

fraud. His sentence was imposed on February 10, 1992. On appeal, we affirmed his

conviction and sentence in an unpublished order and judgment. United States v. Austin,

Nos. 92-1046 & 92-1047, 1992 WL 738548 (10th Cir. 1992).

       On June 30, 1995, Grandgeorge filed this action pursuant to 28 U.S.C. § 2255.

The district court found that the issues raised in Grandgeorge’s § 2255 motion were or

could have been raised on appeal, and therefore summarily dismissed his motion under

Rules Governing Section 2255 Proceedings, Rule 4(b). The district court’s conclusion

that Grandgeorge was procedurally barred from bringing an ineffective assistance of

counsel claim is incorrect under United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir.


                                               -2-
1995) (en banc). Moreover, the procedural bar does not apply to issues respecting which

a defendant can show cause and prejudice, and a petitioner alleging ineffectiveness of

counsel may show cause by establishing ineffectiveness. United States v. Cook, 45 F.3d

388, 392 (10th Cir. 1995).

       We emphasize that we express no view on the merits of Grandgeorge’s claim, or

the necessity of an evidentiary hearing. We VACATE and REMAND to give the district

court an opportunity to consider the ineffective assistance of counsel claim on the merits.

The mandate shall issue forthwith.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                           -3-
