United States Court of Appeals
          For the Eighth Circuit
      ___________________________

              No. 12-3726
      ___________________________

                Lloyd D. Meeks

     lllllllllllllllllllllPetitioner - Appellant

                         v.

           United States of America

    lllllllllllllllllllllRespondent - Appellee
      ___________________________

              No. 12-3914
      ___________________________

            Douglas Marcel Meeks

     lllllllllllllllllllllPetitioner - Appellant

                         v.

           United States of America

    lllllllllllllllllllllRespondent - Appellee
                    ____________

   Appeal from United States District Court
for the Southern District of Iowa - Des Moines
                ____________
                              Submitted: January 17, 2014
                               Filed: February 11, 2014
                                    ____________

Before WOLLMAN, BYE, and SMITH, Circuit Judges.
                          ____________

BYE, Circuit Judge.

       A federal jury found half-brothers Douglas Meeks and Lloyd Meeks guilty of
conspiracy to distribute at least fifty grams of crack cocaine and distribution of at least
five grams of cocaine base. Douglas and Lloyd each filed separate petitions for relief
from their convictions and sentences under 28 U.S.C. § 2255. In the § 2255 petitions,
the petitioners alleged they were not present at the answering of jury questions. The
district court1 found no harm resulted from the absence. The petitioners appeal the
district court's ruling. We affirm.

                                             I

       Douglas Meeks and Lloyd Meeks were indicted and convicted of conspiracy
to distribute at least fifty grams of cocaine base and distribution of at least five grams
of cocaine base.

      The case proceeded to a jury trial. During deliberations, the jury sent two
questions to the district court. First the jury asked, "Is there audio evidence of buy on
June 20?" The district court responded, "Please refer to Exhibit 8, which might be
what you requested." In the second question, the jury asked, "For the amount of crack
cocaine–Is it for the two purchases only (separate) or can we combine together or can

      1
        The Honorable John A. Jarvey, United States District Court for the Southern
District of Iowa.

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we take into account the time period from April-June?" The district court responded,
"Drug quantity on the conspiracy charge is the total amount distributed (while the
defendant was a member of the conspiracy) by the defendant or by another
conspirator, if those distributions were reasonably foreseeable to the defendant. Drug
quantity on Counts 2 and 3 must be limited to the alleged distribution in each of those
counts." There is no record Douglas, Lloyd, or their lawyers were present when the
answers were drafted, approved, or sent to the jury.

      The jury found petitioners guilty on all counts. Because the district court found
both petitioners had two prior felony drug convictions, the district court sentenced
each to mandatory life imprisonment terms on the conspiracy count and concurrent
terms of 360 months on the individual distribution counts. Each petitioner timely filed
an appeal which did not raise the issue of presence during the answering of jury
questions. This Court affirmed the convictions. United States v. Meeks, 639 F.3d 522
(8th Cir. 2011).

        Douglas filed a timely pro se motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. The motion alleged four grounds for setting aside the
sentence, including his absence during the answering of jury questions. Lloyd filed
a timely pro se motion to vacate, set aside, or correct his sentence, but did not raise the
issue of his absence during the jury questions. Lloyd also filed a motion asking to join
in all claims made by Douglas.

       The district court entered an order dismissing all of Douglas's claims, but issued
a certificate of appealability as to the sole question of whether Douglas was entitled
to relief based on his absence during the answering of jury questions. Douglas filed
a timely notice of appeal. The district court entered an order dismissing all of Lloyd's
claims and did not grant Lloyd's motion to join in Douglas's claims. The district court
denied Lloyd a certificate of appealability. Lloyd sought a certificate of appealability



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from this Court. This Court granted the certificate on the sole issue of whether Lloyd
was entitled to relief based on his absence during the answering of jury questions.

                                             II

       Douglas and Lloyd appeal the district court's denial of § 2255 relief on the sole
issue of whether they are entitled to relief based on their absence during the answering
of jury questions.

       The Eighth Circuit reviews a district court's denial of a § 2255 petition de novo.
Ortiz v. United States, 664 F.3d 1151, 1164 (8th Cir. 2011).

       The Fifth and Sixth Amendments to the Constitution protect criminal
defendants' rights to be present at trial. "'[T]he right to personal presence at all critical
stages of the trial' is a fundamental right of criminal defendants." United States v.
Mann, 685 F.3d 714, 720 (8th Cir. 2012) (quoting Rushen v. Spain, 464 U.S. 114, 117
(1983)). The district court must provide defense counsel with a meaningful
opportunity to object before responding to questions asked by the jury after
deliberations begin and "[c]ommunication between judge and jury in the absence of
and without notice to the defendant creates a presumption of prejudice." Stewart v.
Nix, 972 F.2d 967, 971 (8th Cir. 1992). Criminal defendants are not guaranteed the
right to be present when a proceeding involves only a question of law, Fed. R.
Crim. P. 43(b)(3), or when the court merely repeats instructions it has already given,
Stewart, 972 F.2d at 971.

       Neither Douglas nor Lloyd raised the issue of their absence from the answering
of jury questions on direct appeal. A § 2255 petition is not a second direct appeal and
issues raised for the first time in a § 2255 petition are procedurally defaulted. See
Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005). Petitioners do not argue
they are actually innocent and so must demonstrate cause and actual prejudice to

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excuse their procedural default. Charboneau v. United States, 702 F.3d 1132, 1136
(8th Cir. 2013).

       Regarding a demonstration of cause, petitioners do not demonstrate cause for
their failure to raise this issue on direct appeal. Although they argue they were
prejudiced by their absence during the answering of the jury questions, petitioners
never explain the cause which would excuse their failure to raise the issue on direct
appeal. The failure to argue cause for their procedural default, including the absence
of any ineffective assistance of counsel claim, means petitioners cannot excuse their
procedural default. Because petitioners do not establish cause for the procedural
default, we need not reach the question of prejudice. Murphy v. King, 652 F.3d 845,
850 (8th Cir. 2011).

                                           III

       One motion remains. Before this case was submitted, the government filed a
letter with an additional citation pursuant to Fed. R. App. P. 28(j) to make this Court
aware jury instructions had been filed in the district court record. The final jury
instructions were not a part of the district court record at the time this case was filed.
In fact, final jury instructions were not filed in the district court record until January
13, 2014, just days before the case was submitted.

       Petitioners filed a joint motion to strike the Rule 28(j) letter and objected to
supplementing the record. The government's letter does not properly fall under Rule
28(j), which authorizes only "pertinent and significant authorities [which] come to a
party's attention after the brief has been filed." Fed. R. App. P. 28(j) (emphasis
added). Rule 28(j) is not a procedure for supplementing the record on appeal and we
disregard the government's Rule 28(j) letter insofar as it includes material outside the
28(j) limitations. See Davis v. U.S. Bancorp, 383 F.3d 761, 763 n.2 (8th Cir. 2004).



                                           -5-
       The government has communicated its willingness to allow a limited remand
in order for the record to be expanded. Such a remand is not necessary. The only
reason this Court would need to examine the jury instructions is to determine whether
petitioners were actually prejudiced by the answers to the jury questions. See Stewart,
972 F.2d at 971 (holding a defendant's absence is not prejudicial when "the trial
court's communication merely repeats instructions that it has already given, or
involves a question of law rather than fact."). However, because petitioners
procedurally defaulted their claim and do not show cause for the procedural default,
we need not determine whether they were actually prejudiced. Thus, any request to
supplement the record is moot.

                                          IV

      The judgment of the district court is affirmed.
                     ______________________________




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