United States v. Jose Santo Urrutia

57 F.3d 1067, 1995 U.S. App. LEXIS 21781, 1995 WL 361032

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 16, 1995
• Docket: 94-7392
• Status: Published

Opinion

57 F.3d 1067
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.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.
Jose Santo URRUTIA, Defendant-Appellant.

No. 94-7392.

United States Court of Appeals, Fourth Circuit.

Submitted May 18, 1995.
Decided June 16, 1995.

Jose Santo Urrutia, Appellant Pro Se. Earle Giovanniello, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC, for Appellee.

E.D.Va.

AFFIRMED.

Before NIEMEYER and WILLIAMS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

Appellant appeals from the district court's order denying his 28 U.S.C. Sec. 2255 (1988) motion. We have reviewed the record and the district court's opinion and find no reversible error. Accordingly, we affirm substantially on the reasoning of the district court.* United States v. Urrutia, Nos. CR-85-195-A; CA-94-1128-AM (E.D. Va. Sept. 12, 1994). 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.

AFFIRMED

* Although the district court concluded that one of Appellant's double jeopardy claims was barred as successive, the record from the first habeas corpus proceeding was unavailable for review. Nevertheless, the denial of relief was proper. Appellant did not raise the double jeopardy issue on direct appeal and failed to show cause and prejudice for his failure to do so. See United States v. Frady, 456 U.S. 152 (1982). Finally, even if Appellant had shown cause and prejudice, the district court correctly concluded that Appellant's claim failed on the merits. See Blockburger v. United States, 284 U.S. 299 (1932)