                      United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 97-3090
                                     ___________

Roosevelt Hunter, Jr.,                    *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
United States of America,                 *
                                          * [UNPUBLISHED]
             Appellee.                    *
                                     ___________

                            Submitted: June 15, 1998
                                Filed: June 19, 1998
                                     ___________

Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                              ___________

PER CURIAM.

      Roosevelt Hunter, Jr., appeals the District Court’s1 order denying his 28 U.S.C.
§ 2255 (1994) motion. We affirm. In 1994, the government charged Hunter with four
firearm or drug-related violations, including aiding and abetting the use of firearms in
relation to drug trafficking, in violation of 18 U.S.C. §§ 2 and 924(c)(1) (1994). Hunter
pleaded guilty to the § 924(c)(1) violation, and the government agreed to dismiss the



      1
       The Honorable Paul A. Magnuson, Chief Judge, United States District Court for
the District of Minnesota.
remaining charges. The District Court sentenced Hunter under the Guidelines to a term
of 60 months imprisonment and 2 years supervised release.

       Hunter subsequently moved under § 2255 to have his § 924(c)(1) firearm
conviction vacated in light of Bailey v. United States, 516 U.S. 137, 143-45 (1995).
The District Court vacated the conviction and sentence, and vacated the order
dismissing the remaining three counts of the indictment, indicating that the government
was not prohibited from prosecuting Hunter for the previously dismissed counts. Hunter
later pleaded guilty to two of the reinstated counts pursuant to a second written plea
agreement, in which both parties waived their right to appeal the sentence imposed. The
District Court sentenced Hunter to a term of 50 months imprisonment and 3 years
supervised release. Hunter appealed the length of his sentence, and this Court dismissed
his appeal, enforcing the plea agreement. See United States v. Hunter, 111 F.3d 136,
136 (8th Cir. Mar. 31, 1997) (unpublished per curiam). Hunter then filed a § 2255
motion, arguing that the government should not have been permitted to reinstate the
previously dismissed counts, and claiming ineffective assistance. The District Court
denied the petition without a hearing.

       This Court reviews de novo the denial of a § 2255 motion without an evidentiary
hearing and affirms only if the motion, files, and record conclusively show the movant
is not entitled to relief. See United States v. Duke, 50 F.3d 571, 576 (8th Cir.), cert.
denied, 516 U.S. 885 (1995). We note that Hunter’s challenge to the reinstatement of
the dismissed charges is procedurally defaulted by his failure to raise this claim on direct
appeal, absent a showing of cause and prejudice or a showing of actual innocence. See
Bousley v. United States, 118 S. Ct. 1604, 1610-11 (1998). Assuming that Hunter’s
attorney’s failure to raise the issue on direct appeal constitutes cause, Hunter cannot
demonstrate prejudice because we do not believe the district court erred by allowing the
government to reinstate the previously dismissed charges. See United States v.
Moulder, Nos. 97-10417, 97-10436, 1998 WL 247949, at *1-4 (5th Cir. May 18, 1998);
United States v. Green, 139 F.2d 1002, 1004 (4th Cir. 1998); United States

                                            -2-
v. Bunner, 134 F.3d 1000, 1002-05 (10th Cir. 1998), petition for cert. filed, -- U.S.L.W.
-- (U.S. Apr. 24, 1998) (No. 97-8828); United States v. Williams, 534 F.2d 119, 120-23
(8th Cir.), cert. denied, 429 U.S. 894 (1976); cf. Bousley, 118 S. Ct. at 1611-12.
Because Hunter’s claim fails, we conclude that his counsel was not ineffective for
failing to pursue the claim in Hunter’s criminal proceedings and on direct appeal. See
Strickland v. Washington, 466 U.S. 668, 691, 694 (1984); Meyer v. Sargent, 854 F.2d
1110, 1115-16 (8th Cir. 1988).

      The order of the District Court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -3-
