OpenJurist

62 F3d 1428 Boren v. United States

62 F.3d 1428

Ronald Dean BOREN, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 95-6041.
(D.C.No. CR-92-237-C)

United States Court of Appeals, Tenth Circuit.

Aug. 10, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before TACHA, LOGAN, and KELLY, Circuit Judges.

ORDER AND JUDGMENT1

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

In 1993 petitioner Ronald Dean Boren pled guilty to one count of interstate travel in aid of racketeering in violation of 18 U.S.C.1952(a)(3). He did not file a direct appeal. He has, however, petitioned to set aside his sentence pursuant to 28 U.S.C. 2255. The district court dismissed the petition. Petitioner now appeals, claiming (1) that his Confrontation Clause rights were violated at sentencing, and (2) that the sentencing court failed to consider petitioner's ability to pay his fine.

3

"A defendant is procedurally barred from presenting any claim in a section 2255 petition that he failed to raise on direct appeal unless he can demonstrate cause for his procedural default and prejudice suffered thereby, or that the failure to hear his claim would result in a fundamental miscarriage of justice." United States v. Wright, 43 F.3d 491, 496 (10th Cir.1994). Defendant failed to file an appeal and has not shown cause and prejudice, nor a fundamental miscarriage of justice.2 The district court therefore correctly dismissed defendant's petition.

4

The decision of the district court is hereby AFFIRMED.

5

The mandate shall issue forthwith.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

We note, moreover, that the Confrontation Clause does not apply during sentencing proceedings. See United States v. Hershberger, 962 F.2d 1548, 1554 (10th Cir.1992)