
USCA1 Opinion

	




          August 4, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1004                                               PHILLIP S. KING,                                Petitioner, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                Respondent, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Phillip S. King on brief pro se.               _______________               Donald  K.  Stern, United  States  Attorney,  and Sheila  W.               _________________                                 __________          Sawyer, Assistant United States Attorney, on brief for appellee.          ______                                  __________________                                  __________________                      Per Curiam.   Appellant, Phillip King, appeals  pro                      __________            se from a judgment  of the district court denying  his motion            under 28 U.S.C.    2255 to vacate, set aside,  or correct his            sentence. In his  opening brief, he  alleges two grounds  for            relief:   (1) the government  breached the plea  agreement in            taking  the position  that  the  appropriate offense  section            under  the  Sentencing Guidelines  is  U.S.S.G.    2A2.2  for            "aggravated assault"; and (2) the  district court erred as  a            matter of law by using   2A2.2 to  calculate his base offense            level.  The  government argues,  inter alia,  that we  should                                             _____ ____            dismiss the  instant appeal  because  appellant's failure  to            pursue a direct appeal  constitutes a procedural default, and            appellant has made no showing of "cause and prejudice"  under            United States v. Frady, 456  U.S. 152 (1982) (applying "cause            _____________    _____            and  prejudice"  test  to   procedural  defaults  in     2255            context).    Appellant replies  that  he did  not  appeal his            sentence  because the  district  court (and  defense counsel)            failed to advise him of his right to do so, thereby depriving            him of his right  to a direct appeal.   See Fed. R.  Crim. P.                                                    ___            32(a)(2) (imposing a  duty on the sentencing court  to advise            the defendant of any right to appeal the sentence following a            guilty plea).                        We  bypass  the  issue  of waiver  because  we  are            persuaded, for the reasons articulated by the district court,            that  appellant's claims  in  his opening  brief are  without                                         -2-            merit.   See, e.g., Murchu v.  United States, 926 F.2d 50, 53                     ___  ____  ______     _____________            n.4 (1st Cir.) (per curiam) (declining to address question of            procedural   default  where   appellant's      2255   filings            established that his claim  was meritless), cert. denied, 112                                                        ____________            S. Ct. 99  (1991).  We do not address appellant's argument in            his reply brief that  he was deprived of the right  to direct            appeal because this argument  was neither presented below nor            raised on appeal in  a timely fashion.  See,  e.g., Sandstrom                                                    ___   ____  _________            v. Chemlawn Corp., 904 F.2d 83, 86 (1st Cir. 1990) (arguments               ______________            not  made to the district  court or in  the opening brief are            waived).   However, our  affirmance of the  judgment below is            without prejudice to appellant's  right to file a new    2255            motion on this latter ground.                        Affirmed.                      ________                                         -3-
