
USCA1 Opinion

	




          December 27, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 93-1217                                  ADEGBOYEGA AKITOYE,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ____________________            Adegboyega Akitoye on brief pro se.            __________________            Edwin J.  Gale, United  States Attorney,  Margaret  E. Curran  and            ______________                            ___________________        James  H. Leavey,  Assistant  United States  Attorneys,  on brief  for        ________________        appellee.                                 ____________________                                 ____________________                      Per  Curiam.    Appellant  Adegboyega  Akitoye  was                      ___________            convicted of conspiracy to distribute and possession with the            intent to  distribute heroin.  We affirmed  his conviction on            direct appeal.   See United  States v. Akitoye, 923  F.2d 221                             ___ ______________    _______            (1st Cir. 1991).   He then filed  a motion under 28  U.S.C.              2255 to vacate his sentence.  In the motion, appellant raised            two related grounds:  (1)  his conviction for conspiracy  was            obtained by the use of evidence  not relevant to him; and (2)            there  was insufficient evidence to support his conviction of            possession  with the intent to distribute heroin.  On appeal,            appellant argues that  the evidence was not  sufficient as to            the existence of  a conspiracy and  that his lawyer  provided            ineffective assistance by failing to raise the sufficiency of            the evidence claim on direct appeal.1                      Issues  not pursued on direct appeal are subject to            the  cause  and  prejudice standard  under  United  States v.                                                        ______________            Frady, 456  U.S. 152, 167-68  (1982).  See Suveges  v. United            _____                                  ___ _______     ______            States,  7 F.3d  6, 10  (1st Cir.  1993)  (failure of    2255            ______            movant  to object  at trial  to  enhanced term  of supervised            release  and  to  appeal sentence  "in  the  first instance,"                                            ____________________            1.  Appellant also  raises an argument  concerning the  trial            court's denial of the jury's request to have the testimony of            three witnesses  read to it.   However,  appellant failed  to            present this  ground when he  brought his   2255  petition in            the district court.   "[A]n issue not presented  to the trial            court  cannot  be  raised  for the  first  time  on  appeal."            Nogueira v. United States, 683 F.2d 576, 580 (1st Cir. 1982).            ________    _____________            In all events,  this ground has  already been considered  and            rejected on direct appeal.  See Akitoye, 923 F.2d at 225-27.                                        ___ _______            constituted  procedural default;  movant therefore  must show            cause and  prejudice to  obtain collateral  relief); Ford  v.                                                                 ____            United States, 983 F.2d 897, 898 (8th Cir. 1993) (per curiam)            _____________            (defendant was procedurally barred, absent a showing of cause            and prejudice, from  raising issues in a    2255 motion which            he had failed  to pursue on direct appeal).   Thus, appellant            is barred from  raising the claim concerning  the sufficiency            of the evidence  unless he can show cause and  prejudice.  He            cannot  establish `cause' here, except, perhaps, by resort to            the  principle that cause  can be established  by ineffective            assistance of counsel.  Suveges, 7 F.3d at 10; Ford, 983 F.2d                                    _______            at 898-99.                      To show ineffectiveness, appellant must demonstrate            "that  counsel   fell  below  the  applicable   standard  for            performance, defined by  what the lawyer knew, or should have            known, at the time  of his/her tactical choices . . . ."  See                                                                      ___            United States  v. Fisher,  3 F.3d 456,  463 (1st  Cir. 1993).            _____________     ______            Here, what appellant's attorney knew at the time he filed the            appeal was  that we had  upheld, on direct appeal,  the trial            judge's  finding  that  appellant had  obstructed  justice by            perjuring himself at  trial.  The  trial judge, in  enhancing            appellant's  base offense  level,  had described  appellant's            testimony as  a "self-serving `cock  and bull  story.'"   923            F.2d at 228.  Indeed,  in referring to appellant's attempt to            cast his co-conspirator  as the "villain" by  disclaiming any                                         -3-            knowledge   of  the  drugs  or  marked  money  found  in  his            (appellant's)  apartment, we stated:   "Viewed as  a seamless            web,  the  record  stalwartly  supports  the conclusion  that            Akitoye fabricated a fairy tale in a lame effort to avoid the            condign consequences  of his criminal  conduct."  Id  at 229.                                                              __            Given  this scenario,  it  would  be  difficult  to  describe            counsel's  decision not  to contest  the  sufficiency of  the            evidence  as anything  other than  a  tactical decision  well            within what constitutes "reasonable professional assistance."            See Strickland v. Washington, 466 U.S. 668, 689 (1984).            ___ __________    __________                      Nor  do we think that appellant has established the            second prong of  Strickland -- that he was  prejudiced by the                             __________            failure  of his  attorney  to present  this  issue on  direct            appeal.   See id.  at 687.   We  have carefully  reviewed the                      ___ ___            record and find  that there was sufficient evidence, beyond a            reasonable  doubt,  to  support  the jury's  conclusion  that            appellant  had engaged in  a conspiracy to  distribute heroin            and possession with the intent  to distribute it.  See, e.g.,                                                               ___  ____            United States v. Lopez, 944 F.2d 33, 39-40 (1st Cir. 1991).            _____________    _____                      For  the  foregoing  reasons, the  judgment  of the            district court is affirmed.                              ________                                         -4-
