August 4, 1994 [NOT FOR PUBLICATION]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
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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.
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