Federal Circuits, 8th Cir. (September 09, 1993)
Docket number: 93-1691
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http://vlex.com/vid/joseph-wesley-balzer-united-america-36061269
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Before JOHN R. GIBSON, MAGILL, and BEAM, Circuit Judges.
PER CURIAM.Joseph Wesley Balzer, a federal inmate, appeals from the district court's1 denial of his 28 U.S.C. Sec . 2255 motion. We affirm.Balzer and his co-defendants were convicted on one count of operating and directing the operation of a common carrier while under the influence of alcohol in violation of 18 U.S.C. Sec . 342. We affirmed Balzer's conviction. United States v. Prouse, 945 F.2d 1017 (8th Cir. 1991). Balzer then filed this pro se motion raising for the first time errors regarding the indictment and the grand jury proceedings, and constitutional claims regarding section 342.The government claimed procedural default, and at a hearing, Balzer briefly asserted ineffective assistance of appellate counsel as cause for his default. The district court held that Balzer had procedurally defaulted his claims and that he had failed to show cause and prejudice. This timely appeal followed.A section 2255 motion is not a substitute for a direct appeal. See Reid v. United States, 976 F.2d 446, 447 (8th Cir. 1992), cert. denied, 113 S. Ct. 1351 (1993). Thus, claims which could have been presented on direct appeal are not considered in a section 2255 proceeding absent a showing of cause for the failure to raise them and actual prejudice resulting from that failure. Id. at 447-48.Balzer failed to raise by motion before trial the alleged errors in the indictment and grand jury proceedings. See United States v. Sileven, 985 F.2d 962, 965 (8th Cir. 1993) (per curiam); Fed. R. Crim. P. 12(b)(1)-(2) & (f); see also Lagerquist v. United States, 820 F.2d 969, 971 n.5 (8th Cir.) (finding defendant barred from raising insufficiency of indictment in section 2255 motion), cert. denied,Try vLex for FREE for 3 days
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