United States v. Frank R. Fato, Sr.

60 F.3d 825, 1995 U.S. App. LEXIS 24970, 1995 WL 404831

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 10, 1995
• Docket: 94-7000
• Status: Published

Opinion

60 F.3d 825
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

UNITED STATES of America, Plaintiff--Appellee,
v.
Frank R. FATO, Sr., Defendant--Appellant.

No. 94-7000.

United States Court of Appeals, Fourth Circuit.

Submitted: June 22, 1995.
Decided: July 10, 1995.

Frank R. Fato, Sr., appellant pro se. Rita R. Valdrini, Assistant United States Attorney, Wheeling, WV, for appellee.

N.D.W.Va.

AFFIRMED.

Before HALL, MURNAGHAN, and LUTTIG, Circuit Judges.

PER CURIAM:

Frank R. Fato, Sr., appeals from the denial of his motion made pursuant to 28 U.S.C. Sec. 2255 (1988). His motion alleges that he was denied the right to cross-examine and impeach the credibility of a key prosecution witness. We have reviewed the record and the district court's opinion and find no reversible error.

Fato was convicted of three felonies related to the arson of his own property. He was released on bond but failed to appear for sentencing. He was sentenced in absentia, and his attorney filed a timely notice of appeal on his behalf. Because Fato was a fugitive, this court dismissed his appeal with leave to move for reinstatement at a later time for good cause shown. After surrendering to federal authorities over four months after fleeing, Fato moved to reinstate his appeal. We denied his motion.

A collateral attack may not be substituted for a direct appeal. Because Fato's allegations of error could have been raised on appeal, he must demonstrate cause for his failure to appeal and actual prejudice stemming from his procedural default. United States v. Frady, 456 U.S. 152, 167-68 (1982). However, we find that Fato cannot satisfy the cause requirement, because he surrendered his right to appeal when he became a fugitive. See Molinaro v. New Jersey, 396 U.S. 365, 366 (1970). To the extent Fato contends that his flight was involuntary, we denied his motion for reinstatement of his appeal after Fato made an identical argument. Therefore, we affirm the order of the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.