United States v. Cretacci

49 F. App'x 153

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2002
• Docket: No. 01-16592; D.C. Nos. CV-98-1336-RGS, CR-93-00343-RGS
• Status: Published

Opinion

MEMORANDUM

**

Joel Cretacci has not shown “cause” excusing his procedural default on his claim that the disputed language in Blake Cretacci’s plea agreement violated Joel’s constitutional rights. See Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (to show cause, a defendant must show that an external impediment prevented him from raising the claim); United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (a defendant must show both “cause” and “actual prejudice” to obtain relief from a trial error for which no contemporaneous objection was made). Blake’s plea agreement did not prevent Joel from timely asserting, at trial or on appeal, that the plea agreement violated Joel’s constitutional rights.

Joel has also failed to show that the asserted constitutional violation probably resulted in the conviction of one who is actually innocent of the charged offense. See Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). Joel was indicted and convicted for the use of a firearm during a crime of violence, see 18 U.S.C. § 924(C), and aiding and abetting, see 18 U.S.C. § 2. Blake’s affidavit inculpates Joel, establishing that Joel participated in the robbery and that a firearm was used during the robbery of two armed ATM technicians. Blake’s other assertions-that Joel did not use the firearm and did not know about Blake’s use of the firearm-are not relevant to the critical issue whether Joel should have reasonably foreseen that one of the schemers would use a firearm during the robbery of two armed ATM technicians.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.