
USCA1 Opinion

	




        February 13, 1996       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1756                                    UNITED STATES,                                      Appellee,                                          v.                                 JEFFREY A. DIMINICO,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                 ____________________            Jeffrey A. Diminico on brief pro se.            ___________________            Donald  K.  Stern,  United  States  Attorney,  Mark  D.   Seltzer,            _________________                              __________________        Director,  New England Bank Fraud  Task Force, Fraud Section, Criminal        Division, U.S. Department of  Justice, Anita S. Lichtblau and  Paul M.                                               __________________      _______        Glickman,  Trial Attorneys, New  England Bank Fraud  Task Force, Fraud        ________        Section, Criminal  Division, U.S. Department of Justice,  on brief for        appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Jeffrey  A.  Diminico  appeals  the                      ___________            district  court's denial of his 28 U.S.C.   2255 motion.  The            sole  argument made in this motion is that the district court            improperly  delegated to  the United States  Probation Office            the  task of  setting  a payment  schedule for  restitution.1                                                                        1            Diminico did not raise  this issue at sentencing, and  he did            not pursue a direct appeal.   A   2255 motion cannot serve as            a substitute for  appeal.   See United States  v. Frady,  456                                        ___ _____________     _____            U.S. 152, 165  (1982).  Having failed  to raise his claim  of            unauthorized  delegation  of  judicial  authority  on  direct            appeal, Diminico cannot raise  it on collateral attack absent            a showing of cause for the failure and actual prejudice.  See                                                                      ___            Coleman v.  Thompson, 501  U.S. 722,  750  (1991); Knight  v.            _______     ________                               ______            United  States, 37 F.3d 769,  773-74 (1st Cir.  1994).  Since            ______________            Diminico  has  not  even  attempted to  meet  the  cause-and-            prejudice requirement,  we affirm  the denial  of his    2255            motion.                        Affirmed.                      ________                                            ____________________               1On appeal,  Diminico raises additional challenges  to the               1            district court's restitution order.   Since these issues were            not presented in his   2255 motion, we deem them waived.  See                                                                      ___            Singleton  v. United  States, 26  F.3d 233,  240 (1st  Cir.),            _________     ______________            cert. denied, 115 S. Ct. 51 (1994).            ____________
