OpenJurist

101 F3d 681 Tantalo v. United States

101 F.3d 681

Albert TANTALO, Petitioner-Appellant,
v.
UNITED STATES of America, Appellee.

No. 95-2426.

United States Court of Appeals, Second Circuit.

April 1, 1996.
As Amended May 20, 1996.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

APPEARING FOR APPELLANT:Albert Tantalo, pro se, Fredonia, N.Y.

APPEARING FOR APPELLEE:Charles B. Wydysh, Asst. U.S. Atty., Buffalo, N.Y.

Before NEWMAN, C.J., and OAKES and PARKER, Circuit Judges.

1

This cause came on to be heard on the transcript of record from the United States District Court for the Western District of New York and was argued by appellant pro se and by counsel for appellee.

2

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the District Court is hereby AFFIRMED.

3

Albert Tantalo appeal pro se from the June 27, 1995, order denying his second motion to vacate his sentence, pursuant to 28 U.S.C. § 2255. We previously affirmed as frivolous an appeal from the denial of a prior section 2255 motion.

4

Tantolo escaped during the pendency of his direct appeal, which was dismissed for that reason. Though his fugitive status does not automatically preclude a challenge to his conviction, see Ortega-Rodriguez v. United States, 113 S.Ct. 1199 (1993), the District Court properly rejected this second collateral attack since Tantolo has not shown cause for not pursuing his current claims on a direct appeal, see United States v. Frady, 456 U.S. 152 (1982).