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[NOT FOR PUBLICATION]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
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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.
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